As filed with the Securities and Exchange Commission on January 29, 2026.
Registration No. 333-
GE Vernova Inc S-3ASR, filed Jan 29, 2026
GE Vernova Inc. (GEV)
S-3ASR
2026-01-29
View Original
Added on
October 27, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GE Vernova Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) | 92-2646542 (I.R.S. Employer Identification Number) | ||
58 Charles Street
Cambridge, MA 02141
(617) 674-7555
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Richmond Glasgow
Vice President, Chief Corporate Counsel & Deputy Secretary
GE Vernova Inc.
58 Charles Street
Cambridge, MA 02141
(617) 674-7555
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Laura A. Kaufmann, Esq.
Michael S. Hamilton, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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 the Securities Act. ☐
Prospectus
GE Vernova Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer, issue and sell, together or separately, from time to time in one or more offerings:
• | shares of our common stock; |
• | shares of our preferred stock, which may be issued in one or more series; |
• | debt securities, which may be issued in one or more series and which may be senior debt securities or subordinated debt securities; |
• | warrants to purchase shares of our common stock, shares of our preferred stock or our debt securities; and |
• | units, each representing ownership of two or more securities described in this prospectus in any combination. |
We will provide the specific prices and terms of these securities in one or more supplements to this prospectus at the time of offering. You should read this prospectus and the accompanying prospectus supplement carefully before you make your investment decision.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
Investing in our securities involves a number of risks. See “Risk Factors” on page 6 before you make your investment decision.
We may offer securities through underwriting syndicates managed or co-managed by one or more underwriters or dealers, through agents or directly to purchasers. If required, the prospectus supplement for each offering of securities will describe the plan of distribution for that offering. For general information about the distribution of securities offered, please see “Plan of Distribution” in this prospectus.
Our common stock is listed on the New York Stock Exchange under the trading symbol “GEV.” On January 28, 2026, the last reported sale price of our common stock as reported on the New York Stock Exchange was $711.59 per share. Each prospectus supplement will indicate whether the securities offered thereby will be listed on any securities exchange.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is January 29, 2026.
This prospectus is part of an “automatic shelf” registration statement that we filed with the Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. Under this process, we may offer and sell from time to time any combination of the securities described in this prospectus. This prospectus only provides you with a general description of the securities that we may offer. Each time we sell securities, we will provide a supplement to this prospectus that contains specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. You should carefully read both this prospectus, any accompanying prospectus supplement and any free writing prospectus prepared by or on behalf of us, together with the additional information described under the heading “Where You Can Find More Information.”
We have not authorized anyone to provide you with any information other than that contained in or incorporated by reference into this prospectus, any accompanying prospectus supplement and any free writing prospectus prepared by or on behalf of us. We do not take responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making offers to sell the securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
You should assume that the information appearing in this prospectus, any prospectus supplement or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless of the time of delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date.
When used in this prospectus, the terms “GE Vernova,” “Company,” “we,” “our” and “us” refer to GE Vernova Inc. and its consolidated subsidiaries, unless otherwise specified or the context otherwise requires.
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We file annual, quarterly and current reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The SEC maintains a web site that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC. These materials may be obtained electronically by accessing the SEC’s website at www.sec.gov. We make available, free of charge on our website, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, proxy statements and amendments to these reports filed or furnished pursuant to Section 13(a), 14 or 15(d) of the Exchange Act, as soon as reasonably practicable after we electronically file these documents with, or furnish them to, the SEC. These documents are posted on our website at www.gevernova.com/investors.
The SEC allows us to “incorporate by reference” information into this prospectus and any accompanying prospectus supplement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus and any accompanying prospectus supplement, except for any information superseded by information contained directly in this prospectus, any accompanying prospectus supplement, any subsequently filed document deemed incorporated by reference or any free writing prospectus prepared by or on behalf of us. This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that we have previously filed with the SEC (other than information deemed furnished and not filed in accordance with SEC rules, including Items 2.02 and 7.01 of Form 8-K).
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed with the SEC on January 29, 2026; |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2024 from our definitive proxy statement on Schedule 14A, filed with the SEC on March 28, 2025; |
• | our Current Report on Form 8-K, filed with the SEC on January 21, 2026; and |
• | the description of our capital stock contained in Amendment No. 1 to our Registration Statement on Form 10, filed with the SEC on March 5, 2024, as amended by Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed with the SEC on January 29, 2026, and any amendment or report filed for the purpose of updating such description. |
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before the termination of the offering also shall be deemed to be incorporated herein by reference. We are not, however, incorporating by reference any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K.
Upon written or oral request, we will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference into such documents. To obtain a copy of these filings at no cost, you may write or telephone us at the following address:
GE Vernova Inc.
58 Charles Street
Cambridge, MA 02141
(617) 674-7555
Attention: Investor Relations
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This prospectus and any accompanying prospectus supplement and any documents incorporated by reference contain statements that are “forward-looking” within the meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements can often be identified by the use of forward-looking language such as “believe,” “expect,’’ “guidance,” “outlook,” “anticipate,” “intend,” “plan,” “estimate,” “will,” “may,” and negatives or derivatives of these or other similar expressions. Our actual results, performance or achievements could be materially different from the results expressed in, or implied by, forward-looking statements. Forward-looking statements are subject to risks and uncertainties, including but not limited to the risks described in this prospectus, any accompanying prospectus supplement and any documents incorporated by reference, including the “Risk Factors” sections of this prospectus, any accompanying prospectus supplement and our reports and other documents filed with the SEC. When considering forward-looking statements, you should keep in mind the risks, uncertainties and other cautionary statements made in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference.
There can be no assurance that other factors not currently anticipated by us will not materially and adversely affect our business, financial condition and results of operations. You are cautioned not to place undue reliance on any forward-looking statements made by us or on our behalf. Please take into account that forward-looking statements speak only as of the date of this prospectus or, in the case of any accompanying prospectus supplement or documents incorporated by reference, the date of any such document. Except as required by applicable law, we do not undertake any obligation to publicly correct or update any forward-looking statement.
As set forth more fully under “Part I, Item 1A. Risk Factors” of our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q, each of which is incorporated by reference herein, important factors that could cause actual results, performance, or achievements to differ materially from those expressed in or implied by forward-looking statements include, without limitation, the following:
• | Quality issues or safety failures among our products, solutions, or services; |
• | Significant supply chain or logistics disruptions, including cost or availability of materials or components; |
• | Disruptions or capacity constraints at our manufacturing or operating facilities; |
• | Our ability to manage our costs and achieve anticipated cost savings; |
• | Our ability to execute and estimate long-term service obligations; |
• | Our ability to successfully compete; |
• | Our ability to innovate and successfully commercialize new technologies and manage our product cycles; |
• | Achieving expected benefits from strategic transactions, joint ventures, and other third-party collaborations; |
• | Issues with grid connectivity or our customers’ ability to sell generated electricity; |
• | Our ability to manage customer and counterparty relationships and contracts; |
• | Our ability to maintain our investment grade credit ratings; |
• | Our access to capital or credit markets or other financing on acceptable terms; |
• | Decarbonization and energy-transition dynamics; |
• | Changes in energy, environmental, and tax laws and policies; |
• | Challenges of operating globally, including complex legal, regulatory, and compliance risks; |
• | Natural disasters, physical effects of climate change, pandemics, and other emergencies; |
• | Geopolitical events; |
• | Our ability to meet sustainability expectations, standards, and goals; |
• | International trade policies; |
• | Our ability to obtain, maintain, and comply with approvals, licenses, and permits; |
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• | Our ability to comply with laws and regulations and related compliance costs; |
• | Impacts from claims, litigations, regulatory proceedings, and enforcement actions; |
• | Our ability to attract and retain highly qualified personnel and impacts from any labor disputes or actions; |
• | Our ability to secure, deploy and protect our intellectual property rights and defend against third-party claims; |
• | Foreign currency impacts; |
• | Our ability to realize the benefits from our Spin-Off (as defined herein) from, and our obligations to, General Electric Company (“GE”); |
• | Our capital allocation plans, including the timing and amount of any dividends, share repurchases, acquisitions, organic investments, and other priorities; |
• | The price, availability, volatility, and trading volumes of our common stock; |
• | The amount and timing of our cash flows and earnings; |
• | The impact of cybersecurity or data security incidents; and |
• | Other changes in macroeconomic and market conditions and volatility. |
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We are global leader in the electric power industry, with products and services that generate, transfer, orchestrate, convert, and store electricity. We design, manufacture, deliver, and service technologies to create a more reliable, secure, and sustainable electric power system, enabling electrification and decarbonization, underpinning the progress and prosperity of the communities we serve. We are a purpose-built company, positioned with a unique scope and scale of solutions to help accelerate the energy transition, while servicing and growing our installed base and strengthening our own profitability and stockholder returns. We have a strong history of innovation, which is a key strength enabling us to meet our customers’ needs.
The breadth of our portfolio also enables us to provide an extensive range of technologies and integrated solutions to help advance our customers’ energy and sustainability goals. Our installed base generates approximately 25% of the world’s electricity. We build, modernize, and service power systems to help our customers electrify their operations and economies, meet power demand growth, improve system reliability and resiliency, and navigate the energy transition through limiting and reducing emissions. The portfolio of equipment and services that we deliver is diversified across technology types and is adaptable based on electric power market conditions and demand.
We report three business segments that are aligned with the nature of equipment and services they provide, specifically Power, Wind, and Electrification. Within our segments, Power includes gas, nuclear, hydro, and steam technologies, providing a critical foundation of dispatchable, flexible, stable, and reliable power. Our Wind segment includes our wind generation technologies, inclusive of onshore and offshore wind turbines and blades. Electrification includes grid solutions, power conversion and storage, and electrification software technologies required for the transmission, distribution, conversion, storage, and orchestration of electricity from point of generation to point of consumption.
Our principal executive office is located at 58 Charles Street, Cambridge, Massachusetts 02141, and our telephone number is (617) 674-7555. We maintain a website at www.gevernova.com. The information on our website is not incorporated by reference in this prospectus or any accompanying prospectus supplement, and you should not consider it a part of this prospectus or any accompanying prospectus supplement.
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Investing in our securities involves risk. See the risk factors described in our most recent Annual Report on Form 10-K (together with any material changes thereto contained in subsequent filings with the SEC that are incorporated by reference in this prospectus and any accompanying prospectus supplement) and those contained in our other filings with the SEC that are incorporated by reference in this prospectus and any accompanying prospectus supplement. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus and any accompanying prospectus supplement. These risks could materially affect our business, financial condition or results of operations and cause the value of our securities to decline. You could lose all or part of your investment.
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This prospectus contains summary descriptions of the common stock, preferred stock, debt securities, warrants and units that may be offered and sold from time to time. These summary descriptions are not meant to be complete descriptions of each security. However, at the time of an offering and sale, this prospectus together with the accompanying prospectus supplement will contain the material terms of the securities being offered.
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General
The following summary description of our capital stock is based on the provisions of the Delaware General Corporation Law (the “DGCL”), our certificate of incorporation and our bylaws. This description does not purport to be complete and is qualified in its entirety by reference to the full text of the DGCL, as it may be amended from time to time, and to the terms of our certificate of incorporation and bylaws, as each may be amended from time to time, which are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. See “Where You Can Find More Information.” As used in this “Description of Capital Stock,” the terms “GE Vernova,” the “Company,” “we,” “our” and “us” refer to GE Vernova Inc., a Delaware corporation, and do not, unless otherwise specified, include our subsidiaries.
Our authorized capital stock consists of 1,000,000,000 shares of common stock, par value $0.01 per share, and 100,000,000 shares of preferred stock, par value $0.01 per share. The number of authorized shares of any class may be increased or decreased by an amendment to our certificate of incorporation proposed by our board of directors (“Board”) and approved by a majority of voting shares voted on the issue at a meeting at which a quorum exists. However, unless required pursuant to the terms of any certificate of designations relating to any series of preferred stock, such amendment does not require a separate vote of any holders of shares of common stock or preferred stock. The Company has specifically opted out of the provisions of Section 242(b)(2) of the DGCL.
Common Stock
Each stockholder of record of our common stock is entitled to one vote for each share held on every matter properly submitted to the stockholders for their vote. Holders of our common stock do not have cumulative voting rights. After satisfaction of any dividend rights of holders of preferred stock, holders of common stock are entitled ratably to any dividend declared by our Board out of funds legally available for this purpose.
Upon our liquidation, dissolution or winding up, the holders of our common stock are entitled to receive ratably our net assets available, if any, after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock.
Holders of our common stock have no preemptive, subscription, redemption, conversion or exchange rights and no sinking fund provisions.
The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred Stock
This section describes the general terms and provisions of preferred stock that we are authorized to issue. An accompanying prospectus supplement will describe the specific terms of the shares of preferred stock offered through that prospectus supplement, as well as any general terms described in this section that will not apply to those shares of preferred stock. If there are differences between the prospectus supplement relating to a particular series of preferred stock and this prospectus, the prospectus supplement will control. We will file a copy of the certificate of designations that contains the terms of each new series of preferred stock with the Secretary of the State of Delaware and with the SEC each time we issue a new series of preferred stock. Each such certificate of designations will establish the number of shares included in a designated series and fix the designation, powers, privileges, preferences and rights of the shares of each series as well as any applicable qualifications, limitations or restrictions. You should refer to the applicable certificate of designations as well as our certificate of incorporation before deciding to buy shares of our preferred stock as described in any accompanying prospectus supplement.
Our certificate of incorporation authorizes our Board to designate and issue from time to time shares of our preferred stock in one or more series without stockholder approval. Our Board may fix and determine the designations, powers, preferences and relative, participating, optional, or other rights if any, and the qualifications, limitations or restrictions, if any, of the shares of each such series, and the qualifications, limitations or restrictions thereof, may differ from those of any and all other series at any time outstanding.
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Certain Provisions of Delaware Law, Our Certificate of Incorporation, and Our Bylaws
Certificate of Incorporation and Bylaws
Certain provisions in our certificate of incorporation and our bylaws summarized below may be deemed to have an anti-takeover effect.
• | Board Classification. Our certificate of incorporation provides that, until the conclusion of our fifth annual meeting of stockholders following our spin-off from GE on April 2, 2024 (the “Spin-Off”), which we expect to hold in 2029, our Board will be divided into three classes of directors. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective terms. The directors designated as Class I directors have terms expiring at the annual meeting of stockholders in 2028. The directors designated as Class II directors have terms expiring at the annual meeting of stockholders to be held in 2026, and the directors designated as Class III directors have terms expiring at the annual meeting of stockholders to be held in 2027. Any director elected at the annual meeting of stockholders held in 2026, 2027, or 2028, will have a term expiring at the fifth annual meeting of stockholders following the Spin-Off and will hold office until his or her successor has been duly elected and qualified or until his or her earlier death, resignation, disqualification, or removal. Commencing with the fifth annual meeting of stockholders following the Spin-Off, directors of each class will be elected annually and will hold office until our next annual meeting of stockholders and until their respective successors have been duly elected and qualified or until their earlier death, resignation, disqualification, or removal. |
• | Removal of Directors. Our certificate of incorporation provides that (i) prior to our Board being declassified as discussed above, our stockholders may remove directors only for cause and (ii) after our Board has been fully declassified, our stockholders may remove directors with or without cause. Removal will require the affirmative vote of holders of at least a majority of the voting power of the outstanding shares of our capital stock entitled to vote thereon, voting together as a single class. |
• | Vacancies. Our certificate of incorporation provides that any vacancies in our Board will be filled solely by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by the sole remaining director. Prior to the conclusion of our fifth annual meeting of stockholders following the Spin-Off, any director elected to fill a vacancy on our Board will hold office until the expiration of the term of office that coincides with the remaining term of the class of directors to which he or she is elected or of the director he or she replaced, as applicable, and in each case until his or her earlier death, resignation, disqualification or removal. From and after the conclusion of our fifth annual meeting of stockholders following the Spin-Off, any director chosen to fill a vacancy will hold office for a term expiring at the next annual meeting of stockholders and until his or her successor is duly elected and qualified, subject to his or her earlier death, resignation, disqualification or removal. |
• | Blank Check Preferred Stock. Our certificate of incorporation authorizes our Board to issue, without any further vote or action by the stockholders, up to 100,000,000 shares of preferred stock from time to time in one or more series. |
• | No Stockholder Action by Written Consent. Our certificate of incorporation expressly excludes the right of our stockholders to act by written consent. Stockholder action must take place at an annual meeting or at a special meeting of our stockholders. |
• | Special Stockholder Meetings. Our bylaws provide that the Board or a stockholder of record who is acting on behalf of one or more beneficial owners who collectively hold at least 25% of the voting power of all outstanding shares of our common stock will be able to call, or cause to be called, a special meeting of stockholders. |
• | Requirements for Advance Notification of Stockholder Nominations and Proposals. Under our bylaws, stockholders of record are able to nominate persons for election to our Board or bring other business constituting a proper matter for stockholder action only by providing proper notice to our secretary. In the case of annual meetings, proper notice must be given between 90 and 120 days prior to the first anniversary of the prior year’s annual meeting; unless, however, (A) the annual meeting is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting or (B) no annual meeting was held during the prior year. In the case of special meetings, proper |
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notice must be given no earlier than the 120th day prior to the relevant meeting and no later than the later of the 90th day prior to such meeting and the 10th day following the public announcement of the meeting. Such notice must include information specified in the bylaws with respect to each stockholder nominating persons for election to the Board or proposing other business and certain related persons, information with respect to such person’s nominees to the Board (if applicable), and certain representations and undertaking relating to the nomination or proposal, in each case as specified in our bylaws.
• | Proxy Access. Our bylaws allow one or more stockholders (up to 20, collectively), owning at least 3% of our outstanding shares continuously for at least three years, to nominate for election to our Board and to be included in our proxy materials up to the greater of two individuals or 20% of our Board, only by sending proper notice to our secretary. |
• | Amendments to Certificate of Incorporation and Bylaws. The DGCL provides that the affirmative vote of holders of a majority of a company’s voting stock then outstanding is required to amend a corporation’s certificate of incorporation, subject to any class vote requirements and unless the certificate of incorporation specifies a higher threshold. Our certificate of incorporation does not provide for a higher threshold. The DGCL also provides that a board of directors may be granted authority to amend a corporation’s bylaws if so stated in the corporation’s certificate of incorporation, and our certificate of incorporation provides that our Board may amend our bylaws. Under Delaware law, stockholders also have the power to amend bylaws, and our certificate of incorporation provides that the bylaws may be amended by the affirmative vote of holders of at least a majority of the outstanding shares of capital stock of the Company entitled to vote thereon, voting together as a single class. |
Delaware Takeover Statute
We are subject to Section 203 of the DGCL, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that such stockholder became an interested stockholder.
Limitation on Liability of Directors and Indemnification of Directors and Officers
Delaware law authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their stockholders for monetary damages for breaches of directors’ and officers’ fiduciary duties as directors or officers, as applicable, and our certificate of incorporation includes such an exculpation provision. Our bylaws include provisions that indemnify, to the fullest extent allowable under the DGCL, the personal liability of directors or officers for monetary damages for actions taken as a director or officer of GE Vernova, or for serving at our request as a director, officer, employee, or agent at another corporation or enterprise, as the case may be. Our bylaws also provide that we must indemnify and advance expenses to our directors, officers, and employees, subject to our receipt of an undertaking from the indemnified party to repay all amounts advanced if it should be ultimately determined that the indemnified party is not entitled to be indemnified under our bylaws or otherwise.
Exclusive Forum
Our certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery located within the State of Delaware will be the sole and exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, agent, or stockholder to us or our stockholders, any action asserting a claim arising pursuant to the DGCL, the certificate of incorporation, or the bylaws, or any action asserting a claim governed by the internal affairs doctrine. However, if the Court of Chancery within the State of Delaware lacks jurisdiction over such action, the action may be brought in another court of the State of Delaware or, if no court of the State of Delaware has jurisdiction, then in the United States District Court for the District of Delaware. Additionally, our certificate of incorporation states that the foregoing provision will not apply to claims arising under the Securities Act, the Exchange Act, or other federal securities laws for which there is exclusive federal or concurrent federal and state jurisdiction. Unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder as a result of our exclusive forum provisions.
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Listing
Our common stock is listed on the New York Stock Exchange under the symbol “GEV.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Equiniti Trust Company, LLC.
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We may offer debt securities in one or more series, which may be senior debt securities or subordinated debt securities and which may be convertible into another security.
The following description briefly sets forth certain general terms and provisions of the debt securities. The particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which the following general terms and provisions may apply to the debt securities, will be described in an accompanying prospectus supplement. Unless otherwise specified in an accompanying prospectus supplement, our debt securities will be issued in one or more series under an indenture to be entered into between us and The Bank of New York Mellon, as trustee, or such other trustee named therein. A form of the indenture is attached as an exhibit to the registration statement of which this prospectus forms a part. The terms of the debt securities will include those set forth in the indenture and those made a part of the indenture by the Trust Indenture Act of 1939 (“TIA”). You should read the summary below, any accompanying prospectus supplement and the provisions of the indenture in their entirety before investing in our debt securities.
The aggregate principal amount of debt securities that may be issued under the indenture is unlimited. The prospectus supplement relating to any series of debt securities that we may offer will contain the specific terms of the debt securities. These terms may include, among others, the following:
• | the title and aggregate principal amount of the debt securities and any limit on the aggregate principal amount of such series; |
• | any applicable subordination provisions for any subordinated debt securities; |
• | the maturity date(s) or method for determining same; |
• | the interest rate(s) or the method for determining same; |
• | the dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable and whether interest will be payable in cash, additional securities or some combination thereof; |
• | whether the debt securities are convertible or exchangeable into other securities and any related terms and conditions; |
• | redemption or early repayment provisions; |
• | authorized denominations; |
• | if other than the principal amount, the principal amount of debt securities payable upon acceleration; |
• | place(s) where payment of principal and interest may be made, where debt securities may be presented and where notices or demands upon the company may be made; |
• | the form or forms of the debt securities of the series including such legends as may be required by applicable law; |
• | whether the debt securities will be issued in whole or in part in the form of one or more global securities and the date as of which the securities are dated if other than the date of original issuance; |
• | whether the debt securities are secured and the terms of such security; |
• | the amount of discount or premium, if any, with which the debt securities will be issued; |
• | any covenants applicable to the particular debt securities being issued; |
• | any additions or changes in the defaults and events of default applicable to the particular debt securities being issued; |
• | the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination and release of the guarantees), if any; |
• | the currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, the debt securities will be payable; |
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• | the time period within which, the manner in which and the terms and conditions upon which we or the holders of the debt securities can select the payment currency; |
• | our obligation or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision; |
• | any restriction or conditions on the transferability of the debt securities; |
• | provisions granting special rights to holders of the debt securities upon occurrence of specified events; |
• | additions or changes relating to compensation or reimbursement of the trustee of the series of debt securities; |
• | provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture and the execution of supplemental indentures for such series; and |
• | any other terms of the debt securities (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend, supplement or delete any of the terms of the indenture with respect to such series of debt securities). |
General
We may sell the debt securities, including original issue discount securities, at par or at a substantial discount below their stated principal amount. Unless we inform you otherwise in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series or any other series outstanding at the time of issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of securities under the indenture.
We will describe in an accompanying prospectus supplement any other special considerations for any debt securities we sell that are denominated in a currency or currency unit other than U.S. dollars. In addition, debt securities may be issued where the amount of principal and/or interest payable is determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such securities may receive a principal amount or a payment of interest that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable currencies, commodities, equity indices or other factors. Information as to the methods for determining the amount of principal or interest, if any, payable on any date, and the currencies, commodities, equity indices or other factors to which the amount payable on such date is linked will be described in an accompanying prospectus supplement.
United States federal income tax consequences and special considerations, if any, applicable to any such series will be described in an accompanying prospectus supplement.
We expect most debt securities to be issued in fully registered form without coupons and in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Subject to the limitations provided in the indenture and in an accompanying prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at the designated corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
Global Securities
Unless we inform you otherwise in an accompanying prospectus supplement, the debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in an accompanying prospectus supplement. Unless and until a global security is exchanged in whole or in part for the individual debt securities, 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 by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor.
Governing Law
The indenture and the debt securities shall be construed in accordance with and governed by the laws of the State of New York.
14
We may issue warrants for the purchase of shares of our common stock, shares of our preferred stock or our debt securities. We may issue warrants independently or together with other securities, and they may be attached to or separate from the other securities. Each series of warrants will be issued under a separate warrant agreement that we will enter into with a bank or trust company, as warrant agent, as detailed in an accompanying prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation, or agency or trust relationship, with you.
The prospectus supplement relating to a particular issue of warrants will describe the terms of those warrants, including, when applicable:
• | the offering price; |
• | the currency or currencies, including composite currencies, in which the purchase price and/or exercise price of the warrants may be payable; |
• | the number of warrants offered; |
• | the exercise price and the amount of securities you will receive upon exercise; |
• | the procedure for exercise of the warrants and the circumstances, if any, that will cause the warrants to be automatically exercised; |
• | the rights, if any, we have to redeem the warrants; |
• | the date on which the right to exercise the warrants will commence and the date on which the warrants will expire; |
• | the name of the warrant agent; and |
• | any other material terms of the warrants. |
After warrants expire they will become void. The prospectus supplement may provide for the adjustment of the exercise price of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or any other office indicated in an accompanying prospectus supplement. Before the exercise of warrants, holders will not have any of the rights of holders of the securities purchasable upon exercise and will not be entitled to payments made to holders of those securities.
The description in an accompanying prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable warrant agreement, which will be filed with the SEC if we offer warrants. For more information on how you can obtain copies of any warrant agreement if we offer warrants, see “Where You Can Find More Information.” We urge you to read the applicable warrant agreement and any accompanying prospectus supplement in their entirety.
15
We may issue units consisting of two or more securities described in this prospectus in any combination.
The particular terms of the units will be described in the applicable prospectus supplement, including, to the extent applicable, the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately, any provision for the issuance, payment, settlement, transfer, or exchange of the units or of the securities comprising the units and whether the units will be issued in fully registered or global form. The description in an accompanying prospectus supplement of any unit we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement, which will be filed with the SEC if we offer units. For more information on how you can obtain copies of any unit we may offer, see “Where You Can Find More Information.” We urge you to read the applicable unit agreement and any accompanying prospectus supplement in their entirety.
16
We may sell the securities being offered hereby in one or more of the following ways from time to time:
• | to underwriters for resale to purchasers; |
• | directly to purchasers; |
• | through agents or dealers to purchasers; |
• | through a combination of any of these methods; or |
• | through any other method described in the applicable prospectus supplement or free writing prospectus. |
In addition, we may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and any accompanying prospectus supplement. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and any accompanying prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and any accompanying prospectus supplement.
We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in a prospectus supplement.
17
Unless otherwise indicated in any accompanying prospectus supplement, Skadden, Arps, Slate, Meagher & Flom LLP will provide opinions regarding the authorization and validity of the securities. Skadden, Arps, Slate, Meagher & Flom LLP may also provide opinions regarding certain other matters. Any underwriters will be advised about legal matters by their own counsel, which will be named in an accompanying prospectus supplement.
The financial statements of GE Vernova Inc. incorporated by reference in this Prospectus, and the effectiveness of GE Vernova Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm, given their authority as experts in accounting and auditing.
18
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The expenses relating to the registration of the securities will be borne by the registrant.
Securities and Exchange Commission Registration Fee | $ * | ||
FINRA filing fees | $** | ||
Accounting Fees and Expenses | $** | ||
Legal Fees and Expenses | $** | ||
Printing Fees | $** | ||
Transfer Agents and Trustees’ Fees and Expenses | $** | ||
Rating Agency Fees | $** | ||
Stock Exchange Listing Fees | $** | ||
Miscellaneous | $** | ||
Total | $** | ||
* | Unknown because the filing fee is being deferred pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933, as amended (the “Securities Act”). |
** | Fees and expenses will depend on the number and nature of the offerings, and cannot be estimated at this time. An estimate of the aggregate expenses in connection with the issuance and distribution of securities being offered will be included in any applicable prospectus supplement. |
Item 15. | Indemnification of Directors and Officers. |
Delaware law authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their stockholders for monetary damages for breaches of directors’ and officers’ fiduciary duties as directors or officers, as applicable, and the registrant’s certificate of incorporation includes such an exculpation provision. The registrant’s bylaws include provisions that indemnify, to the fullest extent allowable under the Delaware General Corporation Law (“DGCL”), the personal liability of directors or officers for monetary damages for actions taken as a director or officer of the registrant, or for serving at the registrant’s request as a director, officer, employee, or agent at another corporation or enterprise, as the case may be. The registrant’s bylaws also provide that the registrant must indemnify and advance expenses to the registrant’s directors, officers, and employees, subject to the registrant’s receipt of an undertaking from the indemnified party as may be required under the DGCL.
The limitation of liability and indemnification provisions included in the registrant’s certificate of incorporation and bylaws, respectively, may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against the registrant’s directors and officers, even though such an action, if successful, might otherwise benefit the registrant and the registrant’s stockholders. However, these provisions will not limit or eliminate the registrant’s rights, or those of any stockholder, to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. The provisions will not alter the liability of directors under the federal securities laws. In addition, in a class action or direct suit, the registrant may have to pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Reference is made to Item 17 for the registrant’s undertakings with respect to indemnification for liabilities arising under the Securities Act.
The registrant currently maintains insurance policies which, within the limits and subject to the terms and conditions thereof, cover certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the registrant.
The registrant has entered into an indemnification agreement with each of the registrant’s directors that provides, in general, that we will indemnify them to the fullest extent permitted by law in connection with their service to the registrant or on the registrant’s behalf.
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In connection with an offering of the securities registered hereunder, the registrant may enter into an underwriting agreement which may provide that the underwriters are obligated, under certain circumstances, to indemnify directors, officers and controlling persons of the registrant against certain liabilities, including liabilities under the Securities Act.
Item 16. | Exhibits. |
The following documents are filed as exhibits to this registration statement, including those exhibits incorporated herein by reference to one of our prior filings under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
Exhibit No. | Description of Exhibits | ||
1.1* | Form of Underwriting Agreement. | ||
2.1†+ | Separation and Distribution Agreement, dated April 1, 2024, by and between General Electric Company and GE Vernova Inc. (incorporated by reference to Exhibit 2.1 of the registrant’s Current Report on Form 8-K filed with the SEC on April 2, 2024, File No. 001-41966). | ||
Certificate of Incorporation of GE Vernova Inc. (incorporated by reference to Exhibit 3.1 of the registrant’s Current Report on Form 8-K filed with the SEC on April 2, 2024, File No. 001-41966). | |||
Bylaws of GE Vernova Inc. (incorporated by reference to Exhibit 3.2 of the registrant’s Current Report on Form 8-K filed with the SEC on April 2, 2024, File No. 001-41966). | |||
4.1* | Form of Certificate of Designations with respect to any preferred stock issued hereunder. | ||
Form of Indenture for debt securities between the registrant and the trustee to be named therein. | |||
4.3* | Form of Warrant Agreement (including form of Warrant Certificate). | ||
4.4* | Form of Unit Agreement (including form of Unit Certificate). | ||
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. | |||
Consent of Deloitte & Touche LLP, an independent registered public accounting firm. | |||
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |||
Powers of Attorney (included on signature pages hereto). | |||
Statement of Eligibility on Form T-1 of trustee under the Indenture. | |||
Filing Fee Table | |||
* | To be filed by amendment to the Registration Statement or incorporated by reference from documents filed or to be filed with the Securities and Exchange Commission (the “SEC”) under the Exchange Act. |
† | Certain portions of this exhibit have been redacted pursuant to Item 601(b)(2)(ii) and Item 601(b)(10)(iv) of Regulation S-K, as applicable. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the Commission upon its request. |
+ | Certain schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon its request. |
Item 17. | Undertakings. |
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; |
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(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; |
II-2
provided, however, that paragraphs (i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement;
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in this 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 this registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of this 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 this registration statement or prospectus that was part of this registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
II-3
Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses 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 Act and will be governed by the final adjudication of such issue.
II-4
Pursuant to the requirements of the Securities Act of 1933, 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 on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of Massachusetts on January 29, 2026.
GE VERNOVA INC. | ||||||
By: | /s/ Scott Strazik | |||||
Name: | Scott Strazik | |||||
Title: | Chief Executive Officer, President and Director | |||||
In accordance with the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates stated. Each person whose signature appears below constitutes and appoints Scott Strazik, Kenneth Parks, Lola Lin, and Richmond Glasgow, and each of them severally, as his or her true and lawful attorney-in-fact and agent, each acting along with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) and exhibits to the Registration Statement on Form S-3, and to any registration statement filed under SEC Rule 462, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement on Form S-3 has been signed by the following persons in the capacities indicated on January 29, 2026.
Signature | Title | ||
/s/ Scott Strazik | Chief Executive Officer, President and Director (Principal Executive Officer) | ||
Scott Strazik | |||
/s/ Kenneth Parks | Chief Financial Officer (Principal Financial Officer) | ||
Kenneth Parks | |||
/s/ Matthew J. Potvin | Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) | ||
Matthew J. Potvin | |||
/s/ Stephen Angel | Director | ||
Stephen Angel | |||
/s/ Nicholas K. Akins | Director | ||
Nicholas K. Akins | |||
/s/ Arnold W. Donald | Director | ||
Arnold W. Donald | |||
/s/ Matthew Harris | Director | ||
Matthew Harris | |||
/s/ Martina Hund-Mejean | Director | ||
Martina Hund-Mejean | |||
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Exhibit 4.2
GE Vernova Inc.
INDENTURE
Dated as of
, 20
DEBT SECURITIES
The Bank of New York Mellon
Trustee
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture*
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Trust Indenture
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||
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Act Section
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Indenture Section
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|
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§ 310
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(a)
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11.04(a), 16.02
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(b)
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11.01(f), 11.04(b), 11.05(1),
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16.02
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||
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(b)(1)
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11.04(b), 16.02
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|
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§ 311
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11.01(f), 16.02
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§ 312
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14.02(d), 16.02
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(b)
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11.10, 16.02
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(c)
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11.10, 16.02
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§ 313
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(a)
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10.01(a), 16.02
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§ 314
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16.02
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§ 315
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(e)
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11.05, 16.02
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§ 316
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16.02
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§ 317
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16.02
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§ 318
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16.02
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*This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
i
TABLE OF CONTENTS*
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PAGE
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ARTICLE I
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DEFINITIONS
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Section 1.01
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Definitions.
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2
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ARTICLE II
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FORMS OF SECURITIES
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Section 2.01
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Terms of the Securities
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12
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Section 2.02
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Form of Trustee’s Certificate of Authentication
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12
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Section 2.03
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Form of Trustee’s Certificate of Authentication by an Authenticating Agent
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13
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ARTICLE III
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THE DEBT SECURITIES
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Section 3.01
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Amount Unlimited; Issuable in Series
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13
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Section 3.02
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Denominations
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17
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Section 3.03
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Execution, Authentication, Delivery and Dating
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17
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Section 3.04
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Temporary Securities
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19
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Section 3.05
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Registrar
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20
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Section 3.06
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Transfer and Exchange
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20
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Section 3.07
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Mutilated, Destroyed, Lost and Stolen Securities
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24
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Section 3.08
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Payment of Interest; Interest Rights Preserved
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25
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Section 3.09
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Cancellation
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26
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Section 3.10
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Computation of Interest
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27
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Section 3.11
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Currency of Payments in Respect of Securities
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27
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Section 3.12
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Judgments
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27
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Section 3.13
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CUSIP Numbers
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28
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ARTICLE IV
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REDEMPTION OF SECURITIES
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Section 4.01
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Applicability of Right of Redemption
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28
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Section 4.02
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Selection of Securities to be Redeemed
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28
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| * |
The Table of Contents is not a part of the Indenture.
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i
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Section 4.03
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Notice of Redemption
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29
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Section 4.04
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Deposit of Redemption Price
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30
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Section 4.05
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Securities Payable on Redemption Date
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30
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Section 4.06
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Securities Redeemed in Part
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31
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ARTICLE V
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SINKING FUNDS
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Section 5.01
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Applicability of Sinking Fund
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31
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Section 5.02
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Mandatory Sinking Fund Obligation
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31
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Section 5.03
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Optional Redemption at Sinking Fund Redemption Price
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32
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Section 5.04
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Application of Sinking Fund Payment
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32
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ARTICLE VI
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PARTICULAR COVENANTS OF THE COMPANY
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Section 6.01
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Payments of Securities
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33
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Section 6.02
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Paying Agent
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33
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Section 6.03
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Merger, Consolidation and Sale of Assets
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34
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Section 6.04
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Compliance Certificate
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35
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Section 6.05
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Conditional Waiver by Holders of Securities
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35
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Section 6.06
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Statement by Officers as to Default
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35
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ARTICLE VII
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REMEDIES OF TRUSTEE AND SECURITYHOLDERS
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Section 7.01
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Events of Default
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36
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Section 7.02
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Acceleration; Rescission and Annulment
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38
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Section 7.03
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Other Remedies
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39
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Section 7.04
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Trustee as Attorney-in-Fact
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40
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Section 7.05
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Priorities
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40
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Section 7.06
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Control by Securityholders; Waiver of Past Defaults
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41
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Section 7.07
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Limitation on Suits
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41
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Section 7.08
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Undertaking for Costs
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42
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Section 7.09
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Remedies Cumulative
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42
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ARTICLE VIII
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CONCERNING THE SECURITYHOLDERS
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Section 8.01
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Evidence of Action of Securityholders
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43
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Section 8.02
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Proof of Execution or Holding of Securities
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43
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Section 8.03
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Persons Deemed Owners
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44
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Section 8.04
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Effect of Consents
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45
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ii
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ARTICLE IX
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SECURITYHOLDERS’ MEETINGS
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Section 9.01
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Purposes of Meetings
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45
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Section 9.02
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Call of Meetings by Trustee
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45
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Section 9.03
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Call of Meetings by Company or Securityholders
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46
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Section 9.04
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Qualifications for Voting
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46
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Section 9.05
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Regulation of Meetings
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46
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Section 9.06
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Voting
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47
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Section 9.07
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No Delay of Rights by Meeting
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47
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ARTICLE X
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REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS
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Section 10.01
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Reports by Trustee
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48
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|
Section 10.02
|
Reports by the Company
|
48
|
|
Section 10.03
|
Securityholders’ Lists
|
48
|
|
ARTICLE XI
|
||
|
CONCERNING THE TRUSTEE
|
||
|
Section 11.01
|
Rights of Trustees; Compensation and Indemnity
|
49
|
|
Section 11.02
|
Duties of Trustee
|
52
|
|
Section 11.03
|
Notice of Defaults
|
53
|
|
Section 11.04
|
Eligibility; Disqualification
|
53
|
|
Section 11.05
|
Resignation and Notice; Removal
|
54
|
|
Section 11.06
|
Successor Trustee by Appointment
|
55
|
|
Section 11.07
|
Successor Trustee by Merger
|
56
|
|
Section 11.08
|
Right to Rely on Officer’s Certificate
|
56
|
|
Section 11.09
|
Appointment of Authenticating Agent
|
56
|
|
Section 11.10
|
Communications by Securityholders with Other Securityholders
|
57
|
|
Section 11.11
|
Tax Withholding
|
58
|
|
ARTICLE XII
|
||
|
SATISFACTION AND DISCHARGE; DEFEASANCE
|
||
|
Section 12.01
|
Applicability of Article
|
58
|
|
Section 12.02
|
Satisfaction and Discharge of Indenture
|
58
|
|
Section 12.03
|
Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations
|
60
|
|
Section 12.04
|
Repayment to Company
|
61
|
|
Section 12.05
|
Indemnity for U.S. Government Obligations
|
61
|
iii
|
Section 12.06
|
[Reserved]
|
62
|
|
Section 12.07
|
Application of Trust Money
|
62
|
|
Section 12.08
|
Deposits of Non-U.S. Currencies
|
62
|
|
Section 12.09
|
Return of Unclaimed Moneys.
|
62
|
|
ARTICLE XIII
|
||
|
IMMUNITY OF CERTAIN PERSONS
|
||
|
Section 13.01
|
No Personal Liability
|
63
|
|
ARTICLE XIV
|
||
|
SUPPLEMENTAL INDENTURES
|
||
|
Section 14.01
|
Without Consent of Securityholders
|
63
|
|
Section 14.02
|
With Consent of Securityholders; Limitations
|
65
|
|
Section 14.03
|
Trustee Protected
|
66
|
|
Section 14.04
|
Effect of Execution of Supplemental Indenture
|
67
|
|
Section 14.05
|
Notation on or Exchange of Securities
|
67
|
|
Section 14.06
|
Conformity with TIA
|
67
|
|
ARTICLE XV
|
||
|
SUBORDINATION OF SECURITIES
|
||
|
Section 15.01
|
Agreement to Subordinate
|
67
|
|
Section 15.02
|
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities
|
68
|
|
Section 15.03
|
No Payment on Securities in Event of Default on Senior Indebtedness
|
69
|
|
Section 15.04
|
Payments on Securities Permitted
|
70
|
|
Section 15.05
|
Authorization of Securityholders to Trustee to Effect Subordination
|
70
|
|
Section 15.06
|
Notices to Trustee
|
70
|
|
Section 15.07
|
Trustee as Holder of Senior Indebtedness
|
71
|
|
Section 15.08
|
Modifications of Terms of Senior Indebtedness
|
71
|
|
Section 15.09
|
Reliance on Judicial Order or Certificate of Liquidating Agent
|
71
|
|
Section 15.10
|
Satisfaction and Discharge; Defeasance and Covenant Defeasance
|
71
|
|
Section 15.11
|
Trustee Not Fiduciary for Holders of Senior Indebtedness
|
71
|
|
ARTICLE XVI
|
||
|
MISCELLANEOUS PROVISIONS
|
||
|
Section 16.01
|
Certificates and Opinions as to Conditions Precedent
|
72
|
|
Section 16.02
|
Trust Indenture Act Controls
|
73
|
|
Section 16.03
|
Notices to the Company and Trustee
|
73
|
|
Section 16.04
|
Notices to Securityholders; Waiver
|
74
|
|
Section 16.05
|
Legal Holiday
|
74
|
iv
|
Section 16.06
|
Effects of Headings and Table of Contents
|
74
|
|
Section 16.07
|
Successors and Assigns
|
75
|
|
Section 16.08
|
Separability Clause
|
75
|
|
Section 16.09
|
Benefits of Indenture
|
75
|
|
Section 16.10
|
Counterparts Originals
|
75
|
|
Section 16.11
|
Governing Law; Waiver of Trial by Jury; Submission to Jurisdiction
|
75
|
|
Section 16.12
|
Electronic Signatures
|
76
|
v
INDENTURE dated as of , 20 , between GE Vernova Inc., a Delaware corporation (the “Company”), and The Bank of New York Mellon, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of unsecured debentures, notes, bonds or other evidences of indebtedness (the “Securities”) in an
unlimited aggregate principal amount to be issued from time to time in one or more series as provided in this Indenture; and
WHEREAS, 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 the purchase of the Securities by the Holders thereof for the equal and proportionate benefit of all of the present and future Holders of the Securities, each party agrees and
covenants as follows:
DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) unless otherwise defined in this Indenture or the context otherwise requires, all terms used herein without definition which are defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(d) references to “Article” or “Section” or other subdivision herein are references to an Article, Section or other subdivision of this Indenture, unless the context otherwise requires;
(e) words importing any gender include other genders;
(f) the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”; and
(g) references to agreements and other instruments include all amendments and other modifications to such agreements and instruments.
Unless the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:
Affiliate:
The term “Affiliate,” with respect to any specified Person shall mean 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:
The term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.
Board of Directors:
The term “Board of Directors” shall mean either the board of directors of the Company or the executive or any other committee of that board duly authorized to act in respect hereof.
Board Resolution:
The term “Board Resolution” shall mean a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors (or by a committee of
the Board of Directors to the extent that any such other committee has been authorized by the Board of Directors to establish or approve the matters contemplated) and to be in full force and effect on the date of such certification and delivered to
the Trustee.
Business Day:
The term “Business Day,” when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or such location are authorized or required by law, regulation or executive order to close.
Capital Stock:
The term “Capital Stock” shall mean:
2
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership
interests; and
(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Code:
The term “Code” shall mean the Internal Revenue Code of 1986, as amended.
Company:
The term “Company” shall mean the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person.
Company Order:
The term “Company Order” shall mean a written order signed in the name of the Company by any Officer and delivered to the Trustee.
Corporate Trust Office:
The term “Corporate Trust Office,” or other similar term, shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date hereof
is located at 240 Greenwich Street, Floor 7E, New York, NY 10286, Attention: GE Vernova Team, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust officer of
any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
Corporation:
The term “Corporation” means a corporation, association, company, limited liability company, joint-stock company or business or statutory trust.
Currency:
The term “Currency” shall mean U.S. Dollars or Foreign Currency.
3
Default:
The term “Default” shall have the meaning assigned to it in Section 11.03.
Defaulted Interest:
The term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).
Depositary:
The term “Depositary” shall mean, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, each Person designated as Depositary for such series by
the Company pursuant to Section 3.01 until one or more successor Depositaries 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.
Designated Currency:
The term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.
Discharged:
The term “Discharged” shall have the meaning assigned to it in Section 12.03.
DTC:
The term “DTC” shall mean The Depository Trust Company and its successors.
Electronic Means:
The term “Electronic Means” shall mean the following communications methods: email, secure electronic transmission containing applicable
authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Event of Default:
The term “Event of Default” shall have the meaning specified in Section 7.01.
4
Exchange Act:
The term “Exchange Act” shall mean the United States Securities Exchange Act of 1934, and the rules and regulations promulgated by the SEC thereunder and any statute successor thereto, in each case as amended from time
to time.
Exchange Rate:
The term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.
Floating Rate Security:
The term “Floating Rate Security” shall mean a Security that provides for the payment of interest at a variable rate determined periodically by reference to an interest rate index specified pursuant to Section 3.01.
Foreign Currency:
The term “Foreign Currency” shall mean a currency issued by the government of any country other than the United States or a composite currency, the value of which is determined by reference to the values of the
currencies of any group of countries.
GAAP:
The term “GAAP,” with respect to any computations required or permitted hereunder, shall mean generally accepted accounting principles in effect in the United States as in effect from time to time; provided, however if
the Company is required by the SEC to adopt (or is permitted to adopt and so adopts) a different accounting framework, including but not limited to the International Financial Reporting Standards, “GAAP” shall mean such new accounting framework as in
effect from time to time, including, without limitation, in each case, those accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.
Global Security:
The term “Global Security” shall mean any Security that evidences all or part of a series of Securities, issued in fully-registered certificated form to the Depositary for such series in accordance with Section 3.03 and
bearing the legend prescribed in Section 3.03(g).
Holder; Holder of Securities:
The terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder of Securities; Holder.”
Indebtedness:
The term “Indebtedness” shall mean any and all obligations of a Person for money borrowed which, in accordance with GAAP, would be reflected on the balance sheet of such Person as a liability on the date as of which
Indebtedness is to be determined.
5
Indenture:
The term “Indenture” or “this Indenture” shall mean this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01; provided, however, that if at any time more than one Person is acting as Trustee under this
Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture” shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such person had become such Trustee, but to which such person, as such Trustee, was not a party; provided,
further, that in the event that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture” for a particular series of Securities shall only
include the supplemental indentures applicable thereto.
Individual Securities:
The term “Individual Securities” shall have the meaning specified in Section 3.01(p).
Instructions:
The term “Instructions” shall have the same meaning assigned to it in Section 16.03.
Interest:
The term “interest” shall mean, unless the context otherwise requires, interest payable on any Securities, and with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity,
interest payable after Maturity.
Interest Payment Date:
The term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment of interest on such Security.
Mandatory Sinking Fund Payment:
The term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
6
Maturity:
The term “Maturity,” with respect to any Security, shall mean the date on which the principal of such Security shall become due and payable as therein and herein provided, whether by declaration, call for redemption or
otherwise.
Members:
The term “Members” shall have the meaning assigned to it in Section 3.03(i).
Officer:
The term “Officer” shall mean any of the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Commercial Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Assistant Secretary and any President or Vice President of the Company.
Officer’s Certificate:
The term “Officer’s Certificate” shall mean a certificate signed by any Officer and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 16.01 if and to the extent
required by the provisions of such Section.
Opinion of Counsel:
The term “Opinion of Counsel” shall mean an opinion in writing signed by one or more legal counsel, who may be an employee of or counsel to the Company, or other counsel reasonably acceptable to the Trustee, and meets
the requirements provided for in Section 16.01.
Optional Sinking Fund Payment:
The term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Original Issue Discount Security:
The term “Original Issue Discount Security” shall mean any Security that is issued with “original issue discount” within the meaning of Section 1273(a) of the Code and the regulations thereunder, or any successor
provision, and any other Security designated by the Company as issued with original issue discount for United States federal income tax purposes.
Outstanding:
The term “Outstanding,” when used with respect to Securities of any series means, as of the date of determination, all Securities of such series theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
7
(b) Securities or portions thereof for which 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 or Securities as to which the Company’s
obligations have been Discharged; 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 that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to a Responsible Officer of the Trustee proof satisfactory to it that such Securities are held by a protected
purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of Securities of a series Outstanding
have performed any action hereunder, Securities owned by the Company or any other obligor upon the Securities of such series or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such action, only Securities of such series that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that
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 to act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon such Securities or any Affiliate of the Company or of such other obligor. In determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder, the principal amount of
an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose 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 of the
Maturity thereof pursuant to Section 7.02 and the principal amount of a Security denominated in a Foreign Currency that shall be deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).
Paying Agent:
The term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).
Person:
The term “Person” shall mean individual, corporation, partnership, joint venture, trust, association, joint stock company, unincorporated organization, limited liability company, government or any agency or political
subdivision thereof or any similar entity.
Place of Payment:
The term “Place of Payment” shall mean, when used with respect to the Securities of any series, the place or places where the principal of and premium, if any, and interest on the Securities of that series are payable as
specified pursuant to Section 3.01.
8
Predecessor Security:
The term “Predecessor Security” shall mean, with respect to any Security, every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by such particular Security, and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Security.
Record Date:
The term “Record Date” shall mean, with respect to any interest payable on any Security on any Interest Payment Date, any date specified in such Security or pursuant to Section 3.01 with respect to such Security as the
record date for the payment of interest.
Redemption Date:
The term “Redemption Date” shall mean, when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this Indenture and the terms of such Security,
which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01, shall be an Interest Payment Date only.
Redemption Price:
The term “Redemption Price,” when used with respect to any Security to be redeemed, in whole or in part, shall mean the price at which it is to be redeemed pursuant to the terms of the applicable Security and this
Indenture. The Trustee shall not be responsible for calculating or verifying the calculation of the Redemption Price.
Register:
The term “Register” shall have the meaning assigned to it in Section 3.05(a).
Registrar:
The term “Registrar” shall have the meaning assigned to it in Section 3.05(a).
Responsible Officers:
The term “Responsible Officers” of the Trustee hereunder shall mean any vice president, any assistant vice president, any trust officer, any assistant trust officer, secretary, associate or any other officer associated
with the corporate trust department of the Trustee customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter relating to this Indenture,
any other officer of the Trustee to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
9
SEC:
The term “SEC” shall mean the United States Securities and Exchange Commission, as constituted from time to time.
Security:
The term “Security” or “Securities” shall have the meaning stated in the recitals and shall more particularly mean one or more of the Securities duly authenticated by the Trustee and delivered pursuant to the provisions
of this Indenture.
Security Custodian:
The term “Security Custodian” shall mean the custodian with respect to any Global Security appointed by the Depositary, or any successor Person thereto, and shall initially be the Trustee.
Securityholder; Holder of Securities; Holder:
The term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the Person in whose name Securities shall be registered in the Register kept for that purpose hereunder.
Senior Indebtedness:
The term “Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest on (x) Indebtedness of the Company, whether outstanding on the date hereof or thereafter created, incurred, assumed or
guaranteed, for money borrowed other than (a) any Indebtedness of the Company which when incurred, and without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to the Company, (b) any Indebtedness of
the Company to any of its Subsidiaries, (c) Indebtedness to any employee of the Company, (d) any liability for taxes, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate in right of payment to any other
Indebtedness of the Company, and (y) renewals, extensions, modifications and refundings of any such Indebtedness. For purposes of the foregoing and the definition of “Senior Indebtedness,” the phrase “subordinated in right of payment” means debt
subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens,
second liens and other contractual arrangements that provide for priorities among Holders of the same or different issues of indebtedness with respect to any collateral or the proceeds of collateral shall not constitute subordination in right of
payment. This definition may be modified or superseded by a supplemental indenture.
Special Record Date:
The term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).
10
Stated Maturity:
The term “Stated Maturity” when used with respect to any Security or any installment of interest thereon, shall mean the date specified in such Security or pursuant to Section 3.01 with respect to such Security as the
fixed date on which the principal (or any portion thereof) of or premium, if any, on such Security or such installment of interest is due and payable.
Subsidiary:
The term “Subsidiary,” when used with respect to any Person, any Corporation, partnership, trust or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or equivalent body thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of
that person or a combination thereof.
Successor Company:
The term “Successor Company” shall have the meaning assigned to it in Section 3.06(h).
Trade Payables:
The term “Trade Payables” means accounts payable or any other Indebtedness or monetary obligations to trade creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities).
Trust Indenture Act; TIA:
The term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this Indenture, except as provided in Section 14.06 and
except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect on another date.
Trustee:
The term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
U.S. Dollars:
The term “U.S. Dollars” shall mean such currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.
11
U.S. Government Obligations:
The term “U.S. Government Obligations” shall have the meaning assigned to it in Section 12.03.
United States:
The term “United States” shall mean the United States of America, its territories and possessions, any State of the United States and the District of Columbia.
FORMS OF SECURITIES
Section 2.01 Terms of the Securities.
(a) The Securities of each series shall be substantially in the form set forth in a Board Resolution, a Company Order or in one or
more indentures supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on which any series of the Securities may be listed or of any automated quotation system on which any such series may be quoted, or to conform to usage, all as determined by
any of the officers executing such Securities as conclusively evidenced by their execution of such Securities.
(b) The terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to the
extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby.
Section 2.02 Form of Trustee’s
Certificate of Authentication.
(a) Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual or electronic signature, shall be valid or become obligatory for any purpose or entitle the Holder thereof to any right or benefit under this Indenture.
(b) Each Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date
specified as contemplated in Section 3.01.
(c) The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Date of authentication:
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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Authorized Signatory
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Section 2.03 Form of Trustee’s Certificate of
Authentication by an Authenticating Agent. If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication by
such Authenticating Agent to be borne by Securities of each such series shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Date of authentication:
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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[NAME OF AUTHENTICATING AGENT]
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as Authenticating Agent
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By:
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Authorized Signatory
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THE DEBT SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. The title and terms on each series of
Securities shall be as set forth in a Board Resolution, Company Order or in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, and may include:
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(a) the title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all other
series, except to the extent that additional Securities of an existing series are being issued);
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c) the dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates
within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such date or dates shall be determined or extended;
(d) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates
shall be determined, whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase the aggregate principal amount outstanding of such series (including if such Securities were originally
issued at a discount), 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 any such interest shall be payable, and the Record Dates for the
determination of Holders to whom interest is payable on such Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest payments and the duration of such extension or
deferral;
(e) if other than U.S. Dollars, the Foreign Currency in which Securities of the series shall be denominated or in which payment of
the principal of, premium, if any, or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(f) if the amount of payment of principal of, premium, if any, or interest on the Securities of the series may be determined with
reference to an index, formula or other method including, but not limited to, an index based on a Currency or Currencies other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g) if the principal of, premium, if any, or interest on Securities of the series are to be payable, at the election of the Company or
a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such election, the period or periods within which, and the terms and conditions upon which, such election may be made and the
time and the manner of determining the exchange rate between the Currency in which the Securities are denominated or payable without such election and the Currency in which the Securities are to be paid if such election is made;
(h) the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of,
premium, if any, and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration of transfer, exchange or conversion, and the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be made;
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(i) the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions
upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(j) the obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking
fund, amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which or the date or dates on which, the Currency or Currencies in which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k) if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which
Securities of the series shall be issuable;
(l) if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02;
(m) the guarantors, if any, of the Securities of the series, and the extent of the guarantees (including provisions relating to
seniority, subordination, and the release of the guarantors), if any, and any additions or changes to permit or facilitate guarantees of such Securities;
(n) whether the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which
such Securities may be issued;
(o) if the provisions of Article XII hereof shall not be applicable with respect to the Securities of such series; or any addition to
or change in the provisions of Article XII and, if the Securities of any series are payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited with the Trustee pursuant to Section 12.08;
(p) whether the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Global Securities, and the terms and conditions, if any, upon which interests in such Global Security or Global Securities may be exchanged in whole or in part for the individual securities
represented thereby in definitive form registered in the name or names of Persons other than such Depositary or a nominee or nominees thereof (“Individual Securities”);
(q) the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security of
the series to be issued;
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(r) the form or forms of the Securities of the series including such legends as may be required by applicable law;
(s) if the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person
(including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes, if any, to permit or facilitate such conversion or exchange;
(t) whether the Securities of such series are subject to subordination and the terms of such subordination (for avoidance of doubt,
Article XV shall not apply to the Securities of any series unless the terms of such series expressly state it applies);
(u) whether the Securities of such series are to be secured and the terms of such security;
(v) any restriction or condition on the transferability of the Securities of such series;
(w) any addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of
such series;
(x) any addition or change in the provisions related to supplemental indentures set forth in Sections 14.01, 14.02 and 14.04 which
applies to Securities of such series;
(y) provisions, if any, granting special rights to Holders upon the occurrence of specified events;
(z) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02 and any addition or change in the provisions set forth in Article VII which applies to Securities of the
series;
(aa) any addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(bb) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of the TIA, but may
modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
All Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided herein or set forth in a Board Resolution, a Company Order or in one or
more indentures supplemental hereto.
Unless otherwise specified with respect to the Securities of any series pursuant to this Section 3.01, the Company may, at its option, at any time and from time to time, issue additional Securities of any
series of Securities previously issued under this Indenture which together shall constitute a single series of Securities under this Indenture.
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Section 3.02 Denominations. In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series shall be issuable only as Securities in minimum denominations of $2,000 and any
integral multiple of $1,000 in excess thereof, and shall be payable only in U.S. Dollars.
Section 3.03 Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed in the name and on behalf of the Company by the manual, facsimile or other electronic signature
of any Officer. If the Person whose signature is on a Security no longer holds that office at the time the Security is authenticated and delivered, the Security shall nevertheless be valid.
(b) 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, together with a Company Order for the authentication and delivery of such Securities and, if required pursuant to Section 3.01, a supplemental indenture or Company Order setting
forth the terms of the Securities of a series. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the Company. The Company Order shall specify the amount of Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated.
(c) In authenticating the Securities of any series and accepting the additional responsibilities under this Indenture in relation to
such Securities the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel, each prepared in accordance with Section 16.01 stating that the conditions
precedent, if any, provided for in the Indenture have been complied with.
(d) The Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of the
Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e) Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect to
the Securities of such series.
(f) [Reserved]
(g) If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered, in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
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“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH SHALL BE TREATED
BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
The aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided in this Indenture.
(h) Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
(i) Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary shall be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to take
under this Indenture or the Securities.
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(j) No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee or by an Authenticating Agent by manual or electronic signature of an authorized signatory of the Trustee or
Authenticating Agent, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, typewritten, photocopied or otherwise reproduced, in any authorized denominations, substantially of the tenor of the definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Any such temporary
Security may be in the form of one or more Global Securities, representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by the Company and shall be authenticated and delivered by
the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Security or Securities in lieu of which it is issued.
(b) If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of such temporary Securities at the
office or agency of the Company in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor. 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.
(c) Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities
represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary
Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.
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Section 3.05 Registrar.
(a) The Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”), a
security register for the registration and the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Register”), as in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall be in written form or in any other form capable of being converted
into written form within a reasonable time. The Company may have one or more co-Registrars; the term “Registrar” includes any co-registrar.
(b) The Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 11.01. The Company or any Affiliate thereof may act as Registrar, co-Registrar or transfer agent.
(c) The Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this
Indenture, until such time as another Person is appointed as such.
Section 3.06 Transfer and Exchange.
(a) Transfer.
(i) Upon surrender for registration of transfer of any Security of any series at the Registrar
the Company shall execute, and the Trustee or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series for like aggregate principal amount of any authorized
denomination or denominations. The transfer of any Security shall not be valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his, her or its attorney duly authorized in
writing.
(ii) Notwithstanding any other provision of this Section, unless and until it is exchanged in
whole or in part for the Individual Securities represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
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(b) Exchange.
(i) At the option of the Holder, Securities of any series (other than a Global Security, except
as set forth below) may be exchanged for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender of the Securities to be exchanged at the Registrar.
(ii) Whenever any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee or Authenticating Agent shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
(c) Exchange of Global Securities for Individual Securities. Except as provided below, owners of beneficial interests in
Global Securities will not be entitled to receive Individual Securities.
(i) Individual Securities shall be issued to all owners of beneficial interests in a Global
Security in exchange for such interests if: (A) at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible under Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Company within 90 days of such notice, or (B) the Company executes and delivers to the
Trustee and the Registrar a Company Order stating that such Global Security shall be so exchangeable.
In connection with the exchange of an entire Global Security for Individual Securities pursuant to this subsection (c), such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual Securities of such series, will authenticate and deliver to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Individual Securities of authorized denominations.
(ii) The owner of a beneficial interest in a Global Security will be entitled to receive an
Individual Security in exchange for such interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from the Holder of a Global Security directing the Security Custodian and
Registrar to (x) issue one or more Individual Securities in the amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent amount of beneficial interest in such Global
Security, subject to the rules and regulations of the Depositary:
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(A) the Security Custodian and Registrar shall notify the Company and the Trustee of such
instructions, identifying the owner and amount of such beneficial interest in such Global Security;
(B) the Company shall promptly execute and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Individual Securities of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such beneficial interest in such Global Security; and
(C) the Security Custodian and Registrar shall decrease such Global Security by such amount in
accordance with the foregoing. In the event that the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Holder of a Global Security to issue such Individual Securities,
the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial Holder of Securities to pursue such remedy with respect to the portion of the Global
Security that represents such beneficial Holder’s Securities as if such Individual Securities had been issued.
(iii) If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of such series on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary a new Individual Security or new Individual
Securities of the same series, 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
(B) to such Depositary a new Global Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the aggregate principal amount of Individual Securities delivered to Holders thereof.
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(iv) In any exchange provided for in clauses (i) through (iii), the Company will execute and the
Trustee will authenticate and deliver Individual Securities in registered form in authorized denominations.
(v) Upon the exchange in full of a Global Security for Individual Securities, such Global
Security shall be canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
(d) All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer or exchange.
(e) Every Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or
its attorney duly authorized in writing.
(f) No service charge will be made for any registration of transfer or exchange of Securities. The Company or the Trustee may require
payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at
the Company’s own expense or without expense or charge to the Holders.
(g) The Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for redemption under Section 4.02 and ending at the close of business on the day of such transmission, or (ii) register,
transfer or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h) In case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant to
Section 6.03, any of the Securities previously authenticated or delivered may, from time to time, at the request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in
phraseology and form as may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this Section 3.06 in exchange or substitution for or upon
registration of transfer of any Securities, such Successor Company, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities authenticated and delivered in
such new name.
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(i) None of the Trustee, any Paying Agent or the Registrar shall have any obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including transfers between or among Depositary participants, Members or beneficial
owners 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.
REDEMPTION OF SECURITIES
SINKING FUNDS
PARTICULAR COVENANTS OF THE COMPANY
CONCERNING THE SECURITYHOLDERS
SECURITYHOLDERS’ MEETINGS
(j) Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the
Depositary.
(k) Prior to the due presentation for registration of transfer or exchange of any Security, the Company, the Trustee, the Paying
Agent, the Registrar or any of their agents may deem and treat the Person in whose name a Security is registered as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon) for all purposes whatsoever, and none of the Company, the Trustee, the Paying Agent, the Registrar or any of their agents shall be affected by any notice to the contrary.
(l) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a
participant in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered
Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities.
(a) If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Security, a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously outstanding, such that neither gain nor loss in interest shall
result from such exchange or substitution.
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(b) In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c) Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
(d) Every new Security of any series issued pursuant to this Section shall constitute an original 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.
(e) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.08 Payment of Interest; Interest Rights Preserved.
(a) Interest on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be
paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest notwithstanding the cancellation of such Security upon any transfer or exchange
subsequent to the Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Register or, if provided pursuant to Section 3.01, by wire transfer to an account designated by the Holder.
(b) Any interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his, her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or (ii) below:
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(i) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “Special Record Date”), which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such 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 Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 calendar days and not less than 10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of such
Securities in the manner set forth in Section 16.04, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on Securities in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09 Cancellation. Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all
Securities surrendered for payment, redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation and
shall be promptly canceled by it and, if surrendered to the Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the
Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities held by it in accordance with its then customary procedures and deliver a certificate of such disposal to the Company upon its request
therefor. The acquisition of any Securities by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such Securities are surrendered to the Trustee for cancellation.
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Section 3.10 Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any
series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium,
if any, and interest on Securities of such series will be made in U.S. Dollars.
(b) For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an action that requires
that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on the
Securities of all series in respect of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on the Outstanding Securities denominated in a Foreign Currency will be the amount in U.S. Dollars based upon
exchange rates, determined as specified pursuant to Section 3.01 for Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c) Any decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Company; provided that such agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Company at the time of such
appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section 3.01 for the making of such decision or determination. All decisions and determinations of such agent regarding
exchange rates shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of the Securities.
(d) Neither the Trustee nor the Paying Agent shall have any responsibility for converting any Securities or payments from one
currency to another, obtaining any exchange rates or otherwise effecting any conversions or calculations hereunder.
Section 3.12 Judgments. The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the
obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S. Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the
essence and agrees that, to the fullest extent possible under applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the
principal of and premium, if any, and interest on such Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency
that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency (after any premium and cost of exchange) on the Business Day in the country of issue of the Designated
Currency or in the international banking community (in the case of a composite currency) immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any
reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of the Company not discharged by such payment shall be due as a separate
and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
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Section 3.13 CUSIP Numbers. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then
generally in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange or other notice to Holders with respect to such series 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 to Holders and that reliance may be placed only on the other identification numbers printed on the Securities, and any
such redemption or exchange 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, ISIN or other similar numbers.
REDEMPTION OF SECURITIES
Section 4.01 Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund,
amortization or analogous provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for Securities of any series) in accordance with this Article; provided, however, that
if any such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
Section 4.02 Selection of Securities to be Redeemed.
(a) If the Company shall at any time elect to redeem less than all of the Securities of a series then Outstanding, it shall at
least five days prior to the date that the notice of redemption is to be given (unless a shorter period shall be satisfactory to the Trustee) notify the Trustee in writing of such Redemption Date and of the principal amount of Securities to be
redeemed, and thereupon the Notes to be redeemed shall be selected by lot or, in the case of Global Securities, in accordance with procedures of the Depositary; provided that the unredeemed portion of the principal amount of any Security shall
be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. In any case where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate
principal amount so registered as if it were represented by one Security of such series. The Trustee shall, as soon as practicable, notify the Company in writing of the Securities and portions of Securities so selected.
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(b) 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 that has been or is to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 4.03 Notice of Redemption.
(a) Notice of redemption shall be given in writing by the Company or, at the Company’s request, by the Trustee in the name and at
the expense of the Company, not less than 10 nor more than 60 days prior to the Redemption Date, to the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner provided in Section 16.04.
Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Failure to give such notice, or any defect in such notice to the Holder of any Security of a series designated for
redemption, in whole or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder of any other Security of such series. Any such notice of redemption shall also be given to the Trustee at least five days
prior to the date that such notice of redemption is to be given to the Holders (unless a shorter period shall be satisfactory to the Trustee).
(b) All notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if
available along with the statement in Section 3.13) and shall state:
(i) such election by the Company to redeem Securities of such series pursuant to provisions
contained in this Indenture or the terms of the Securities of such series or a supplemental indenture establishing such series, if such be the case;
(ii) the Redemption Date;
(iii) the Redemption Price;
(iv) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the Securities of such series to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed, and that, if applicable, interest thereon shall cease to accrue on and after said date;
(vi) the Place or Places of Payment where such Securities are to be surrendered for payment
of the Redemption Price;
(vii) that the redemption is for a sinking fund, if such is the case; and
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(viii) the applicable conditions to such redemption, if any.
(c) Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent,
including, but not limited to, completion of any equity offering or change of control, issuance of Indebtedness or other transaction or event. Notice of any redemption in respect thereof will be given prior to the completion thereof, may be
partial as a result of only some of the conditions being satisfied, may be delayed until such time (including more than 60 days after the notice of redemption was given) as any or all such conditions shall be satisfied (or waived by the Company
in its sole discretion) and may be rescinded at any time if the Company determines in its sole discretion that any or all of such conditions will not be satisfied (or waived). The Company may provide in such notice that payment of the
applicable redemption price and the performance of the Company’s obligations with respect to such redemption may be performed by another Person.
(d) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense;
provided, however, that the Company shall have delivered to the Trustee, at least five days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section (or such shorter period as is acceptable to
the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in the notice as provided in the preceding paragraph.
Section 4.04 Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time, on the Redemption Date for any
Securities, the Company shall deposit with the Trustee or with a Paying Agent an amount of money in the Currency in which such Securities are denominated (except as provided pursuant to Section 3.01) sufficient to pay the Redemption Price of such
Securities or any portions thereof that are to be redeemed on that date.
Section 4.05 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall Default in the payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that (unless otherwise provided pursuant to Section 3.01) installments of
interest that have a Stated Maturity on or prior to the Redemption Date for such Securities shall be payable according to the terms of such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest from the Redemption Date at the
rate borne by or prescribed in such Securities.
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Section 4.06 Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the
Corporate Trust Office or such other office or agency of the Company as is specified in the notice of redemption with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his, her or its attorney duly authorized in writing, and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same series, of like tenor and form, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered; except that if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. In the case of a Security providing appropriate space for such notation, at the option of
the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.
SINKING FUNDS
Section 5.01 Applicability of Sinking Fund.
(a) Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the
terms of such series of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise specified pursuant to Article IV for Securities of such series, provided, however, that if any
such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
(b) The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as
a “Mandatory Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities
of any series, the cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.
Section 5.02 Mandatory Sinking Fund Obligation. The Company may, at its option, satisfy any Mandatory Sinking Fund
Payment obligation, in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable form theretofore purchased or otherwise acquired by the Company or redeemed at
the election of the Company pursuant to Article IV or (b) receiving credit for Securities of such series (not previously so credited) acquired by the Company and theretofore delivered to the Trustee. The Trustee shall credit such Mandatory
Sinking Fund Payment obligation with an amount equal to 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. If
the Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate the
Securities (and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore delivered) in transferable form. In case of the failure of the Company, at or before the time so
required, to give such notice and deliver such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
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Section 5.03 Optional Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of
Section 5.02, to the extent, if any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund Payment with respect to such Securities. Unless otherwise provided by such terms,
(a) to the extent that the right of the Company to make such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent year, and (b) such optional payment shall operate to
reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities of the same series. If the Company intends to exercise its right to make such optional payment in any year it shall deliver to the Trustee not less than 45 days
prior to the relevant sinking fund payment date an Officer’s Certificate stating that the Company will exercise such optional right, and specifying the amount which the Company will pay on or before the next succeeding sinking fund payment date.
Such Officer’s Certificate shall also state that no Event of Default has occurred and is continuing.
Section 5.04 Application of Sinking Fund Payment.
(a) If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular
series of Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000 (or a lesser sum if the Company shall so request, or such equivalent sum for Securities
denominated other than in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall be a sinking fund payment date, in which case such
payment shall be applied on such sinking fund payment date, to the redemption of Securities of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in Section 4.02, for
redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb said funds, as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption,
prepared by the Company, of the Securities to be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the option of the Company, except that the notice of redemption shall also state that the
Securities are being redeemed for the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking fund payment received in funds by the Trustee and,
together with such payment, shall be applied in accordance with the provisions of this Section 5.04. Any and all sinking fund moneys 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 of such series, shall be applied by the Trustee to the payment of the principal of the Securities of such series at Maturity.
(b) On or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but
not including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
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(c) The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this
paragraph) of which a Responsible Officer of the Trustee has actual knowledge, 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 funds sufficient for that purpose shall be deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund at the time any such Default or Event of
Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of all the Securities of such series; provided, however, that in
case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date on which such moneys are required to be applied pursuant to the provisions
of this Section 5.04.
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01 Payments of Securities. The Company will duly and punctually pay the principal of and premium, if
any, on each series of Securities, and the interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities and in this Indenture.
Section 6.02 Paying Agent.
(a) The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities 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 and this Indenture may be served
(the “Paying Agent”). The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as Paying Agent
to receive all presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate different or additional offices or agencies where the Securities of any
series may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind any such designations; provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation and of any change in the location of any
such different or additional office or agency. The Company shall enter into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.
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(c) If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then prior to 10:00 a.m., New York City time, on the date on which the principal of and premium, if any, or interest on any of the Securities of that series shall become payable as aforesaid, whether by
their terms or as a result of the calling thereof for redemption, the Company will deposit with such Paying Agent a sum sufficient to pay such principal and premium, if any, or interest, such sum to be held in trust for the benefit of the
Holders of such Securities or the Trustee, and (unless such Paying Agent is the Trustee), the Company or any other obligor of such Securities will promptly notify the Trustee of its payment or failure to make such payment.
Section 6.03 Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities:
(a) The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person unless:
(i) in case the Company shall consolidate with or merge into any other Person, or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall be a Corporation,
partnership, trust or other entity, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium
and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of Default and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Section 6.03 and that all conditions precedent herein provided for relating to such transaction have been complied
with.
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(b) Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance or transfer
(other than a lease) of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such
conveyance or transfer (other than a lease) is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the
Company herein; and in the event of any such conveyance or transfer (but not in the case of a lease) the Company shall be discharged from all obligations and covenants under the Indenture. Such successor Person may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication pursuant to such provisions and any Securities which such successor Person thereafter shall cause to be signed and delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof. In case of any such consolidation, merger, conveyance, transfer or lease such changes in phraseology and form may be made in the Securities thereafter to be issued as may be
appropriate.
Section 6.04 Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, the Company shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate from an Officer as to his or her knowledge of the Company’s compliance with all conditions and
covenants under this Indenture (which compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture) and, in the event of any Default, specifying each such Default and the nature and
status thereof of which such person may have knowledge. Such certificates need not comply with Section 16.01 of this Indenture.
Section 6.05 Conditional Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding,
the Company may fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to any series of Securities if the Company shall have obtained and filed with the Trustee, prior to the time of such
failure or omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (except as to a covenant or condition which under
Section 14.02 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected, in which case the consent of the Holder of each Outstanding Security of such series affected shall be required),
either waiving such compliance in such instance or generally waiving compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, or impair any right
consequent thereon and, until such waiver shall have become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
Section 6.06 Statement by Officers as to Default. The Company shall deliver to the Trustee as soon as possible and in
any event within 30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting
forth the details of such Event of Default or Default and the action which the Company proposes to take with respect thereto.
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REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01 Events of Default. Except where otherwise indicated by the context or where the term is otherwise defined
for a specific purpose, the term “Event of Default” as used in this Indenture with respect to Securities of any series shall mean any of the following described events unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the manner contemplated in Section 3.01:
(a) the failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become
payable, which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium, if any, on) any Security of such series, when and as the same
shall become payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), upon acceleration under this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if any, when and as the same shall become payable by the terms
of a Security of such series, which failure shall have continued unremedied for a period of 30 days;
(d) the failure of the Company, subject to the provisions of Section 6.05, to perform or breach, in any material respect, of any
covenant or warranty of the Company, by the Company, in this Indenture (or the terms of the Securities of such series or a supplemental indenture establishing such series) (other than a covenant or condition which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than that series and other than a covenant or condition a default in the performance of which is elsewhere in this Section 7.01 specifically addressed), which failure shall
not have been remedied, or without provision deemed to be adequate for the remedying thereof having been made, for a period of 90 days after written notice shall have been given to the Company by the Trustee or shall have been given to the
Company and the Trustee by Holders of 33% or more in aggregate principal amount of the Securities of such series then Outstanding, specifying such failure, requiring the Company to remedy the same and stating that such notice is a “Notice of
Default” hereunder;
(e) the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an
involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Company or of substantially all the property of the Company or ordering the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days;
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(f) the commencement by the Company of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Company to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company
to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Company or of substantially all the property of the Company or the making by it of an assignment for
the benefit of creditors or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any action; or
(g) the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01;
provided, however, that no event described in clause (d) or (other than with respect to a payment default) (g) above shall constitute an Event of Default hereunder until the Trustee or the Holders of 33% or more in aggregate principal amount
of the Securities of such series then Outstanding, notify the Company (and the Trustee in case of notice by the Holders) of the Default, specifying the Default, requiring the Company to remedy the same and stating that such notice is a “Notice of
Default” hereunder.
Notwithstanding the foregoing provisions of this Section 7.01, if the principal or any premium or interest on any Security is payable in a Currency other than the Currency of the United States and such Currency is not available to the Company
for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in the
Currency of the United States in an amount equal to the Currency of the United States equivalent of the amount payable in such other Currency, as determined by the Company by reference to the noon buying rate in The City of New York for cable
transfers for such Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 7.01, any payment made under such circumstances in the Currency of the United States where the required payment is in a Currency other than the Currency of the United States will not
constitute an Event of Default under this Indenture.
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Section 7.02 Acceleration; Rescission and Annulment.
(a) Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of
the above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect to Securities of any series at the time Outstanding, then, and in each and every such case, during the
continuance of any such Event of Default, the Trustee or the Holders of 33% or more in principal amount of the Securities of such series then Outstanding may declare the principal (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of and all accrued and unpaid interest on all the Securities of such series then Outstanding to be due and payable immediately by a
notice in writing to the Company (and to the Trustee if given by Holders), and upon any such acceleration such principal amount (or specified amount) and accrued and unpaid interest thereon shall become immediately due and payable. If an Event
of Default specified in Section 7.01(e) or 7.01(f) occurs and is continuing, then in every such case, the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may
be specified by the terms of that series) of and accrued and unpaid interest on all of the Securities of that series then Outstanding shall automatically, and without any acceleration or any other action on the part of the Trustee or any
Holder, become due and payable immediately. Upon payment of such amounts in the Currency in which such Securities are denominated (subject to the last paragraph of Section 7.01 and except as otherwise provided pursuant to Section 3.01), all
obligations of the Company in respect of the payment of principal of and interest on the Securities of such series shall terminate.
(b) The provisions of Section 7.02(a), however, are subject to the condition that, if at any time after the principal and accrued
and unpaid interest on all the Securities of such series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to be or shall have automatically become due and payable, and before a
judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Event of Default giving rise to the declaration of acceleration will, without further act, be deemed to have been
waived, and such declaration and its consequences will, without further act, be deemed to have been rescinded and annulled if:
(i) the Company has paid or deposited with the Trustee or Paying Agent a sum in the
Currency in which such Securities are denominated (subject to the last paragraph of Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to pay:
(A) all overdue installments of interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such Securities, and
(D) all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a)
(provided, however, that all sums payable under this clause (D) shall be paid in U.S. Dollars); and
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(ii) every other Default and Event of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which have become due solely by such acceleration, have been cured or waived as provided in Section 7.06.
(c) No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d) For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such acceleration, unless such acceleration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 7.03 Other Remedies. If the Company shall fail for a period of 30 days to pay any installment of interest on
the Securities of any series or shall fail to pay any principal of and premium, if any, on any of the Securities of such series when and as the same shall become due and payable, whether at Maturity, or by call for redemption (other than pursuant
to the sinking fund), by acceleration as authorized by this Indenture, or otherwise, or shall fail for a period of 30 days to make any required sinking fund payment as to a series of Securities, then, upon demand of the Trustee, the Company will
pay to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding the whole amount which then shall have become due and payable on all the Securities of such series for principal, premium, if any, and accrued
and unpaid interest, with interest (so far as the same may be legally enforceable) on the overdue principal and on the overdue premium, if any, and accrued and unpaid interest at the rate borne by or prescribed in such Securities, and all amounts
owing the Trustee and any predecessor trustee hereunder under Section 11.01(a).
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceeding at
law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon the Securities of such series, wherever situated, in the manner provided by law. Every recovery of
judgment in any such action or other proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a), shall be for the ratable benefit of the Holders of such series
of Securities which shall be the subject of such action or proceeding. All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee without the possession of any of the Securities and without the
production of any thereof at any trial or any proceeding relative thereto.
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Section 7.04 Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and each and every Holder of the Securities,
by receiving and holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder, with authority to make or file (whether or not the Company shall be in Default in respect of the
payment of the principal of, premium, if any, or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall deem advisable, in any receivership, insolvency, liquidation, bankruptcy,
reorganization or other judicial proceeding relative to the Company or any other obligor upon the Securities or to their respective creditors or property, any and all claims, proofs of claim, proofs of debt, petitions, consents, other papers and
documents and amendments of any thereof, as may be necessary or advisable in order to have the claims of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim, and to execute and deliver any and all other papers and documents and to do and perform any and all other acts and things, as it may deem necessary or advisable in
order to enforce in any such proceeding any of the claims of the Trustee and any predecessor trustee hereunder and of any of such Holders in respect of any of the Securities; and any receiver, assignee, trustee, custodian or debtor in any such
proceeding is hereby authorized, and each and every taker or Holder of the Securities, by receiving and holding the same, shall be conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor, to make any such
payment or delivery only to or on the order of the Trustee, and to pay to the Trustee any amount due it and any predecessor trustee hereunder under Section 11.01(a); provided, however, that nothing herein contained shall be deemed to authorize or
empower the Trustee to consent to or accept or adopt, on behalf of any Holder of Securities, any plan of reorganization or readjustment affecting the Securities or the rights of any Holder thereof, or to authorize or empower the Trustee to vote
in respect of the claim of any Holder of any Securities in any such proceeding; provided, however, that unless prohibited by law or applicable regulation, the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 7.05 Priorities. Any moneys or properties collected by the Trustee with respect to a series of Securities under
this Article VII shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys or properties and, in the case of the distribution of such moneys or properties on account of the Securities
of any series, upon presentation of the Securities of such series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all amounts due to the Trustee and any predecessor trustee hereunder under Section 11.01(a).
Second: Subject to Article XV (to the extent applicable to any series of Securities then outstanding), to the payment of the amounts then due and unpaid for principal of and any premium and
interest on the Outstanding Securities of such series in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Outstanding
Securities for principal and any premium and interest, respectively.
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Any surplus then remaining shall be paid to the Company or as directed by a court of competent jurisdiction.
Section 7.06 Control by Securityholders; Waiver of Past Defaults. The Holders of a majority in principal amount of the
Securities of any series at the time Outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee hereunder, or of exercising any trust or power hereby conferred upon the Trustee with
respect to the Securities of such series, provided, however, that, subject to the provisions of Sections 11.01 and 11.02, the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel determines
that the action so directed may not lawfully be taken or would be unduly prejudicial to Holders not joining in such direction or would involve the Trustee in personal liability. Prior to any acceleration of the Maturity of the Securities of any
series, the Holders of a majority in aggregate principal amount of such series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past Default or Event of Default hereunder and its
consequences except a continuing Default in the payment of interest or any premium on or the principal of the Securities of such series and except as to a covenant or condition which under Section 14.02 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected, in which case the consent of the Holder of each Outstanding Security of such series affected shall be required for such waiver. Upon any such waiver the Company, the
Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.06, said Default or Event of Default shall for all purposes of the Securities of such series and this Indenture be
deemed to have been cured and to be not continuing.
Section 7.07 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any action,
suit or proceeding at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in each case with respect to an Event of Default with respect to such series of Securities,
unless such Holder previously shall have given to the Trustee written notice of one or more of the Events of Default herein specified with respect to such series of Securities, and unless also the Holders of 33% or more in principal amount of the
Securities of such series then Outstanding shall have requested the Trustee in writing to take action in respect of the matter complained of, and unless also there shall have been offered to the Trustee security and indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, the Trustee, for 60 days after receipt of such notification, request and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Securities of such series then Outstanding; and
such notification, request and offer of indemnity are hereby declared in every such case to be conditions precedent to any such action, suit or proceeding by any Holder of any Security of such series; it being understood and intended that no one
or more of the Holders of Securities of such series shall have any right in any manner whatsoever by his, her, its or their action to enforce any right hereunder, except in the manner herein provided, and that every action, suit or proceeding at
law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Holders of the Outstanding Securities of such series; provided, however, that nothing in this Indenture or in the Securities
of such series shall affect or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on the Securities of such series to the respective Holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right, which is also absolute and unconditional, of such Holders to institute suit to enforce the payment thereof.
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Section 7.08 Undertaking for Costs. All parties to this Indenture and each Holder of any Security, by such Holder’s
acceptance thereof, shall be deemed to have agreed that any court may in its discretion require, in any action, suit or proceeding for the enforcement of any right or remedy under this Indenture, or in any action, suit or proceeding against the
Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to pay the costs of such action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such action, suit or proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.08 shall not apply to any action, suit or proceeding instituted by the Trustee, to any action, suit or proceeding instituted by any one or more Holders of Securities holding in the aggregate more
than 10% in principal amount of the Securities of any series Outstanding, or to any action, suit or proceeding instituted by any Holder of Securities of any series for the enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective due dates expressed in such Securities.
Section 7.09 Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities of any series is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or
by statute. No delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power or shall be construed to be a
waiver of any such Default or Event of Default or an acquiescence therein; and every power and remedy given by this Article VII to the Trustee and to the Holders of Securities of any series, respectively, may be exercised from time to time and as
often as may be deemed expedient by the Trustee or by the Holders of Securities of such series, as the case may be. In case the Trustee or any Holder of Securities of any series shall have proceeded to enforce any right under this Indenture and
the proceedings for the enforcement thereof shall have been discontinued or abandoned because of waiver or for any other reason or shall have been adjudicated adversely to the Trustee or to such Holder of Securities, then and in every such case
the Company, the Trustee and the Holders of the Securities of such series shall severally and respectively be restored to their former positions and rights hereunder, and thereafter all rights, remedies and powers of the Trustee and the Holders
of the Securities of such series shall continue as though no such proceedings had been taken, except as to any matters so waived or adjudicated.
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CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action of Securityholders. Whenever in this Indenture it is provided that the Holders of a
specified percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced by (a) any instrument or any number of instruments of similar tenor executed by
Securityholders in person, by an agent or by a proxy appointed in writing, including through an electronic system for tabulating consents operated by the Depositary for such series or otherwise (such action becoming effective, except as herein
otherwise expressly provided, when such instruments or evidence of electronic consents are delivered to the Trustee and, where it is hereby expressly required, to the Company), or (b) by the record of the Holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article IX, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
Section 8.02 Proof of Execution or Holding of Securities. Proof of the execution of any instrument by a Securityholder
or his, her or its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary
public or other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within such jurisdiction, that the Person who signed such instrument did acknowledge before such notary
public or other officer the execution thereof, or (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer. Where such execution is by a Person acting in other than his or her individual capacity,
such certificate or affidavit shall also constitute sufficient proof of his or her authority.
(b) The ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the
Registrar for such series.
(c) The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
(d) The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem appropriate or
necessary, so long as the request is a reasonable one.
(e) If the Company shall solicit from the Holders of Securities of any series any action, the Company may, at its option fix in
advance a record date for the determination of Holders of Securities entitled to take such action, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company’s discretion. If such a record date is
fixed, such action may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders of Securities for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of such series have authorized or agreed or consented to such action, and for that purpose the Outstanding Securities of such series shall be computed as of such record date.
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Section 8.03 Persons Deemed Owners.
(a) The Company, the Trustee or any of their agents shall 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) 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 of their agents shall be affected by notice to the contrary. All payments made to any Holder, or upon his, her or its order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Security.
(b) None of the Company, the Trustee, or any of their agents will 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.
(c) None of the Company, the Trustee, the Paying Agent, the Registrar, or any of their agents shall have any responsibility or
obligation to any beneficial owner in a Global Security, a Depositary participant or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any Depositary participant, with respect to any ownership
interest in the Securities or with respect to the delivery to any Depositary participant, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or
with respect to such Securities. All notices and communications to be given to the Securityholders and all payments to be made to Securityholders under the Securities and this Indenture shall be given or made only to or upon the order of the
registered Holders (which shall be the Depositary or its nominee in the case of the Global Security). The rights of beneficial owners in the Global Security shall be exercised only through the Depositary subject to the applicable procedures.
The Company, the Trustee, the Paying Agent, the Registrar and their agents shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Members, participants and any
beneficial owners. The Company, the Trustee, the Paying Agent, the Registrar and their agents shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered Holder of any Global Security for all purposes of this
Indenture relating to such Global Security (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or Holder of a beneficial ownership
interest in such Global Security) as the sole Holder of such Global Security and shall have no obligations to the beneficial owners thereof. None of the Company, the Trustee, the Paying Agent, the Registrar or any of their agents shall have any
responsibility or liability for any acts or omissions of the Depositary with respect to such Global Security, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global
Security, for any transactions between the Depositary and any Depositary participant or between or among the Depositary, any such Depositary participant and/or any Holder or owner of a beneficial interest in such Global Security, or for any
transfers of beneficial interests in any such Global Security.
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(d) Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with respect to such Global Security or shall impair, as between
such Depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Global Security.
Section 8.04 Effect of Consents. After an amendment, supplement, waiver or other action becomes effective as to any
series of Securities, a consent to it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every subsequent Holder of the same Securities or portion thereof, and of any Security issued upon
the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any such Security.
SECURITYHOLDERS’ MEETINGS
Section 9.01 Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article IX for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article VIII;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XI;
(c) to consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02;
or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of all Securityholders of any or
all series that may be affected by the action proposed to be taken, to take any action specified in Section 9.01, to be held at such time and at such place in the borough of Manhattan in the City of New York as the Trustee shall determine.
Notice of every meeting of the Securityholders of a series, setting forth the time and the place in the borough of Manhattan in the City of New York of such meeting and in general terms the action proposed to be taken at such meeting, shall be
mailed at the expense of the Company to Holders of Securities of such series at their addresses as they shall appear on the Register of the Company. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for
the meeting.
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Section 9.03 Call of Meetings by Company or Securityholders. In case at any time the Company or the Holders of at least
10% in aggregate principal amount of the Securities of any or all series then Outstanding that may be affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of Securityholders of such series, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may
determine the time and the place in the borough of Manhattan in the City of New York for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Securityholders, a Person shall (a)
be a Holder of one or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled
to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Unless otherwise expressly provided pursuant to Section 3.01 with respect to the Securities of any series, any vote, consent, waiver or other action given or taken by the Holders of any series of Securities at a meeting shall be given or taken,
as the case may be, by the Holders of such series of Securities as a separate class.
Section 9.05 Regulation of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the meeting.
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(c) At any meeting of Securityholders of a series, each Securityholder of such series or such Securityholder’s proxy shall be
entitled to one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If the Securities of any series are issuable in minimum denominations of less than $1,000, then a Holder of such a Security in a principal amount of less than $1,000
shall be entitled to a fraction of one vote which is equal to the fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no right to vote other than by virtue of Securities of such series
held by him or her or instruments in writing as aforesaid duly designating him or her as the Person to vote on behalf of other Securityholders. At any meeting of the Securityholders of any series duly called pursuant to the provisions of
Section 9.02 or 9.03, the presence of Persons holding or representing Securities of such series in an aggregate principal amount sufficient to take action as it concerns the Securities of such series upon the business for the transaction of
which such meeting was called shall be necessary to constitute a quorum, and any such meeting may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Securityholders of a series shall
be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts of the Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02.
The record shall show the principal amounts of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article IX shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders of such series under any of the provisions of this Indenture or of the Securities of such series.
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REPORTS BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
SECURITYHOLDERS’ LISTS
Section 10.01 Reports by Trustee.
(a) So long as any Securities are outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each
anniversary following the date of this Indenture deliver to Holders a brief report which complies with the provisions of such Section 313(a).
(b) The Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of
this Section 10.01, file a copy of such report with each stock exchange upon which the Securities are listed, if any, and also with the SEC in respect of a Security listed and registered on a national securities exchange, if any. The Company
agrees to notify the Trustee when, as and if the Securities become listed on any stock exchange or any delisting thereof.
(c) The Company will reimburse the Trustee for all expenses incurred in the preparation and transmission of any report pursuant to
the provisions of this Section 10.01 and of Section 10.02.
Section 10.02 Reports by the Company. The Company shall file with the Trustee and the SEC, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act; provided that, unless available on EDGAR, any such
information, documents or reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 30 days after the same is filed with the SEC.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee acknowledges and
agrees that materials transmitted electronically by the Company to the Trustee shall be deemed filed with the Trustee for purposes of this Section 10.02.
Section 10.03 Securityholders’ Lists. The Company covenants and agrees that it will furnish or cause to be furnished to
the Trustee:
(a) semi-annually, within 15 days after each Record Date, but in any event not less frequently than semi-annually, a list in such
form as the Trustee may reasonably require of the names and addresses of the Holders of Securities to which such Record Date applies, as of such Record Date, and
(b) 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 of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished.
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CONCERNING THE TRUSTEE
Section 11.01 Rights of Trustees; Compensation and Indemnity. The Trustee accepts the trusts created by this Indenture
upon the terms and conditions hereof, including the following, to all of which the parties hereto and the Holders from time to time of the Securities agree:
(a) The Trustee shall be entitled to such compensation as the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon its request for all reasonable and documented out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including the reasonable fees and reasonable and documented expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own gross negligence or willful misconduct.
The Company also agrees to indemnify each of the Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own gross negligence or willful misconduct, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it
acts), as well as the reasonable and documented costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except those attributable to its
negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have counsel of its
selection and the Company shall pay the reasonable and documented fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
As security for the performance of the obligations of the Company under this Section 11.01(a), the Trustee shall have a lien upon all property and funds held or collected by the Trustee as such,
except funds held in trust by the Trustee to pay principal of, premium and interest on any Securities. Notwithstanding any provisions of this Indenture to the contrary, the obligations of the Company to compensate and indemnify the Trustee under
this Section 11.01(a) shall survive the resignation or removal of the Trustee, the termination of this Indenture and any satisfaction and discharge under Article XII. When the Trustee incurs expenses or renders services after an Event of Default
specified in clause (e) or (f) of Section 7.01 occurs, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or similar laws.
(b) The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and
attorneys and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
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(c) The Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities
(except its certificates of authentication thereon) contained, all of which are made solely by the Company; and the Trustee shall not be responsible or accountable in any manner whatsoever for or with respect to the validity or execution or
sufficiency of this Indenture or of the Securities (except its certificates of authentication thereon), and the Trustee makes no representation with respect thereto, except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications
set forth therein. The Trustee shall not be accountable for the use or application by the Company of any Securities, or the proceeds of any Securities, authenticated and delivered by the Trustee in conformity with the provisions of this
Indenture.
(d) The Trustee may consult with counsel of its selection, and 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 to be taken by the Trustee hereunder in good faith and in reliance thereon.
(e) The Trustee may rely upon the certificate of the Secretary or one of the Assistant Secretaries of the Company as to the
adoption of any Board Resolution or resolution of the stockholders of the Company, and any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by, and 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 may rely upon, an Officer’s Certificate of the Company (unless other evidence in
respect thereof be herein specifically prescribed).
(f) The Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have had if it were not the Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
(h) Any action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the
time is the Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of any Security or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such
Security shall have noted thereon the fact that such request or consent had been made or given.
(i) The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, direction, judgment, approval, bond, debenture or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party
or parties.
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(j) The Trustee shall not be under any 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 of the Securities, pursuant to any provision of this Indenture, unless one or more of the Holders of the Securities shall have provided to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it therein or thereby.
(k) The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or
within its discretion or within the rights or powers conferred upon it by this Indenture.
(l) The Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless the Company or Holders of not less than 33% of the Outstanding Securities notify the Trustee thereof in writing and such notice references the securities and this Indenture.
(m) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document, but the Trustee may, but shall not be required to, make further inquiry or
investigation into such facts or matters as it may see fit.
(n) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(o) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
(p) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or
consequential or other similar loss or damage of any kind whatsoever (including, but not limited to, loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.
(q) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this
Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire;
flood; terrorism; wars and other military disturbances; sabotage; pandemics or epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of
civil or military authority and governmental action.
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Section 11.02 Duties of Trustee.
(a) If one or more of the Events of Default specified in Section 7.01 with respect to the Securities of any series shall have
happened, then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) None of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent
action, negligent failure to act, or its own willful misconduct, except that, anything in this Indenture contained to the contrary notwithstanding,
(i) unless and until an Event of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened which at the time is continuing,
(A) the Trustee undertakes to perform such duties and only such duties with respect to the
Securities of that series as are specifically set out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and
(B) the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, in the absence of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions of this Indenture; but in the case of any such certificates or opinions
which, by the provisions of this Indenture, are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein);
(ii) the Trustee shall not be liable to any Holder of Securities or to any other Person for
any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable to any Holder of Securities or to any other Person
with respect to any action taken or omitted to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in Section 7.06, relating to the time, method and place of conducting any proceeding for any
remedy available to it or exercising any trust or power conferred upon it by this Indenture.
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(c) None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(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 11.02.
Section 11.03 Notice of Defaults. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee
shall give to the Holders of the Securities of a series notice of each Default or Event of Default with respect to the Securities of such series known to the Trustee, by transmitting such notice to Holders at their addresses as the same shall
then appear on the Register of the Company, unless such Default shall have been cured or waived before the giving of such notice (the term “Default” being hereby defined to be the events specified in Section 7.01, which are, or after notice or
lapse of time or both would become, Events of Default as defined in said Section). Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on any of the Securities of such series when and
as the same shall become payable, or to make any sinking fund payment as to Securities of the same series, the Trustee shall be protected in withholding such notice, if and so long as a Responsible Officer or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
Section 11.04 Eligibility; Disqualification.
(a) The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and
surplus of at least $150,000,000 as set forth in its most recent published annual report of condition, and shall have a Corporate Trust Office. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.04, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
(b) The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(i) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i)
are met. If the Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) 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. If Section 310(b) of the Trust Indenture Act is amended any time after the date of this Indenture to change the circumstances under which a Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series or to change any of the definitions in connection therewith, this Section 11.04 shall be automatically amended to incorporate such changes.
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Section 11.05 Resignation and Notice; Removal. The Trustee, or any successor to it hereafter appointed, may at any time
resign and be discharged of the trusts hereby created with respect to any one or more or all series of Securities by giving to the Company notice in writing. Such resignation shall take effect upon the appointment of a successor Trustee and the
acceptance of such appointment by such successor Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time by the filing with such Trustee and the delivery to the Company of an instrument or instruments in
writing signed by the Holders of a majority in principal amount of the Securities of such series then Outstanding, specifying such removal and the date when it shall become effective.
If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months
(or, if it is a shorter period, the period since the initial issuance of the Securities of such series), or
(2) the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six
months (or, if it is a shorter period, the period since the initial issuance of the Securities of such series), or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by written notice to the Trustee may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Securityholder who has been a bona fide
Holder of a Security for at least six months (or, if it is a shorter period, the period since the initial issuance of the Securities of such series) may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
In addition, the Company may remove the Trustee with respect to Securities of any series without cause if the Company gives written notice to the Trustee of such proposed removal at least three months in advance of the
proposed effective date of such removal.
Upon its resignation or removal, any Trustee shall be entitled to the payment of reasonable compensation for the services rendered hereunder by such Trustee and to the payment of all reasonable and documented expenses
incurred hereunder and all moneys then due to it hereunder. The Trustee’s rights to indemnification provided in Section 11.01(a) shall survive its resignation or removal.
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Section 11.06 Successor Trustee by Appointment.
(a) In case at any time the Trustee shall resign, or shall be removed or if a vacancy exists in the office of the Trustee for any
reason, with respect to Securities of any or all series, the Company shall promptly appoint a successor Trustee. However, if all or substantially all the assets of the Company shall be in the possession of one or more custodians or receivers
lawfully appointed, or of trustees in bankruptcy or reorganization proceedings (including a trustee or trustees appointed under the provisions of the federal bankruptcy laws, as now or hereafter constituted), or of assignees for the benefit of
creditors, such receivers, custodians, trustees or assignees, as the case may be, shall promptly appoint a successor Trustee with respect to the Securities of any or all series. Subject to the provisions of Sections 11.04 and 11.05, upon the
appointment as aforesaid of a successor Trustee with respect to the Securities of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After any such appointment other than by the Holders of
Securities of any such series, the Person making such appointment shall forthwith cause notice thereof to be mailed to the Holders of Securities of such series at their addresses as the same shall then appear on the Register of the Company. 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 such appointment.
(b) If any Trustee with respect to the Securities of any series shall resign or be removed and a successor Trustee shall not have been
appointed by the Company or, if any successor Trustee so appointed shall not have accepted its appointment within 30 days after such appointment shall have been made, the resigning Trustee at the expense of the Company may apply to any court of
competent jurisdiction for the appointment of a successor Trustee. If in any other case a successor Trustee shall not be appointed pursuant to the foregoing provisions of this Section 11.06 within three months after such appointment might have
been made hereunder, the Holder of any Security of the applicable series or any retiring Trustee at the expense of the Company may apply to any court of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, in any such
case, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Trustee.
(c) Any successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and
deliver to its predecessor Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the case may be, an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations with respect to such series of such predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor Trustee, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to pay over, and such successor Trustee shall be entitled to receive, all moneys and properties held by such
predecessor Trustee as Trustee hereunder with respect to the Securities of such series, subject nevertheless to its lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of the successor Trustee or of the
Holders of at least 10% in principal amount of the Securities of any such series then Outstanding, such predecessor Trustee, upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to such successor
Trustee upon the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee with respect to the Securities of such series and shall assign, transfer and deliver to the successor Trustee all moneys and properties held by
such predecessor Trustee with respect to the Securities of such series, subject nevertheless to its lien provided for in Section 11.01(a); and, upon request of any such successor Trustee or the Company shall make, execute, acknowledge and deliver
any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Trustee all such authority, rights, powers, trusts, immunities, duties and obligations.
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Section 11.07 Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by
this Indenture shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee or any such successor to it shall be a
party, or any Person to which the Trustee or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or
filing of any paper or any further act on the part of any of the parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture with respect to one or more series of Securities, any of such Securities shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 11.08 Right to Rely on Officer’s Certificate. Whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence, bad faith or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate with respect thereto delivered to the Trustee, and such Officer’s Certificate, in the absence of
negligence, bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 11.09 Appointment of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”) acceptable
to the Company to authenticate the Securities, and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
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Each Authenticating Agent shall at all times be a corporation organized and doing business and in good standing under the laws of the United States, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than $150,000,000 and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Article XI, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Article XI, it shall resign immediately in the manner and with the effect specified in this
Article XI.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this
Article XI, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days’ written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section 11.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 11.09.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation as agreed upon from time to time by the Company and such Authenticating Agent in writing for its services under this
Section 11.09.
Section 11.10 Communications by Securityholders with Other Securityholders. Holders of Securities may communicate pursuant to
Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act with respect to such communications.
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Section 11.11 Tax Withholding. Notwithstanding any other provision of this Indenture, the Trustee shall be entitled to make a
deduction or withholding from any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or
agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any certification or other requirements in respect of the Securities, in
which event the Trustee shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and shall have no obligation to gross up any payment hereunder or
pay any additional amount as a result of such withholding tax.
The Company hereby covenants with the Trustee that it will provide the Trustee with sufficient information so as to enable the Trustee to determine whether or not the Trustee is obliged, in respect of any payments to be
made by it pursuant to this Indenture, to make any withholding or deduction pursuant to an agreement described in 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 or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01 Applicability of Article. The provisions of this Article shall be applicable to the Securities of all series
issued pursuant to this Indenture, except as otherwise specified pursuant to Section 3.01.
Section 12.02 Satisfaction and Discharge of Indenture. This Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected), shall, upon Company Order, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Securities herein expressly provided for and the
rights of the Holders of the Securities of such series to receive, the principal of and premium, if any, and interest on such Securities as and when the same shall become due and payable and except as otherwise provided in the last paragraph of this
Section 12.02), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series, when,
(a) either:
(i) all Securities of such series theretofore authenticated and delivered (other than (A)
Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.07 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.09) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to the Trustee for cancellation,
(A) have become due and payable, or
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(B) will become due and payable at their Stated Maturity within one year, or
(C) if redeemable at the option of the Company (including, without limitation, by operation of any
mandatory sinking fund), are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company and the Trustee shall have
been given irrevocable instructions to redeem such Securities on such date;
and the Company, in the case of (A), (B) or (C) above, has irrevocably deposited or caused to be deposited with the Trustee in trust for the purpose (x) money in the Currency in which such Securities are payable (subject
to Section 12.08), or (y) U.S. Government Obligations (as defined herein) that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment,
money in the Currency in which such Securities are payable in an amount, or (z) a combination of (x) and (y), sufficient (without consideration of any reinvestment of such principal and interest) to pay and discharge the entire indebtedness on such
Securities for principal and premium, if any, and interest to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity thereof or, in the case of Securities of such series which are to be called
for redemption as contemplated by (C) above, the applicable Redemption Date, as the case may be, and including any mandatory sinking fund payments as and when the same shall become due and payable;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such
series; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any series, the obligations of the Company to the Trustee under Section 11.01 and in the case of
satisfaction and discharge under Section 12.02, the provisions of Sections 3.04, 3.05, 3.06, 3.07, 3.10 and 6.02 and this Article XII, and, if the Securities of such series are to be redeemed prior to their Stated Maturity (including, without
limitation, pursuant to a mandatory sinking fund), the provisions of Article IV hereof, and, if the Securities of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such Securities to
convert or exchange, and the obligations of the Company to convert or exchange, such Securities into other securities or property, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the obligations of the
Trustee under Section 12.07 shall survive such satisfaction and discharge.
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Section 12.03 Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the Company’s
option, either (x) the Company shall be deemed to have been Discharged (as defined herein) from its obligations with respect to Securities of any series on the first day after the applicable conditions set forth below have been satisfied or (y) the
Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Section 6.03 and Section 10.02 with respect to Securities of any series (and, if so specified pursuant to Section 3.01, any other restrictive
covenant added for the benefit of such series pursuant to Section 3.01) (“covenant defeasance”) upon the satisfaction of the applicable conditions set forth below:
(a) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in the Currency in which such Securities are payable in an amount, or (ii) U.S. Government Obligations that, through the payment
of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment, money in the Currency in which such Securities are payable in an amount, or (iii) a combination of
(i) and (ii), sufficient (without consideration of any reinvestment of such principal and interest) to pay and discharge each installment of principal (including any mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of interest or principal and premium are due and, if the Securities of such series are to be called for redemption as described in clause (d) below, to pay and discharge the
Redemption Price on the Securities called for redemption on the applicable Redemption Date;
(b) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds and the grant of any related liens to be applied to such deposit) and, solely in the case of Discharge pursuant to clause (x) of the first paragraph of this Section 12.03, no Default with respect
to the Securities of such series under either clause (e) or (f) of Section 7.01 shall have occurred at any time during the period ending on and including the date of such deposit;
(c) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Securities
of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise of its option under this Section and will be subject to federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such option had not been exercised and, in the case of the Securities of such series being Discharged pursuant to clause (x) of the first paragraph of this Section 12.03, such Opinion of Counsel
shall be based upon and accompanied by a ruling to that effect received by the Company from or published by the Internal Revenue Service;
(d) if the monies or U.S. Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are
sufficient to pay the principal of and premium, if any, and interest on the Securities of such series (including, without limitation, any mandatory sinking fund payment) or any portion thereof to be redeemed on a particular Redemption Date
(including, without limitation, pursuant to a mandatory sinking fund), the Company shall have given to the Trustee irrevocable instructions to redeem such Securities on such date and shall have made arrangements satisfactory to the Trustee for the
giving of notice of such redemption by the Trustee in the name, and at the expense, of the Company; and
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(e) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent to such action under this Indenture have been complied with.
“Discharged” means, with respect to the Securities of any series, that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Securities of such series
and to have satisfied all the obligations under this Indenture relating to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following, all of which
shall survive such Discharge and remain in full force and effect with respect to the Securities of such series: (A) the rights of Holders of Securities of such series to receive, from the trust fund described in clause (a) above, payment of the
principal of and premium, if any, and interest on such Securities when such payments are due, (B) Sections 3.04, 3.05, 3.06, 3.07, 3.10 and 6.02, (C) if the Securities of such series are to be redeemed prior to their Stated Maturity, the provisions
of Article IV hereof, (D) if the Securities of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such Securities to convert or exchange, and the obligations of the Company to convert or
exchange, such Securities into such other securities or property, (E) the provisions of this Article XII and (F) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
“U.S. Government Obligations” means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the timely of payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses (i) or (ii) are not
callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
Section 12.04 Repayment to Company. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee)
upon delivery of a Company Order any moneys or U.S. Government Obligations deposited pursuant to Sections 12.02 and 12.03 with respect to the Securities of any series and held by them that are in excess of the monies and/or U.S. Government
Obligations that were required to effect the satisfaction and discharge, covenant defeasance or Discharge, as applicable, with respect to the Securities of such series.
Section 12.05 Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the deposited U.S. Government Obligations or the principal or interest received on such U.S. Government Obligations.
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Section 12.06 [Reserved],
Section 12.07 Application of Trust Money.
(a) Neither the Trustee nor any other Paying Agent shall be required to pay interest on any moneys deposited pursuant to the
provisions of this Indenture, except such as it shall agree with the Company in writing to pay thereon.
(b) Any monies and U.S. Government Obligations which at any time shall be deposited by the Company or on its behalf with the Trustee
or any other Paying Agent for the purpose of paying the principal of, premium, if any, and interest on any of the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such other Paying Agent in trust for the
respective Holders of the Securities for the purpose for which such moneys shall have been deposited, and such funds shall be applied by the Trustee or Paying Agent in accordance with the provisions of such Securities and this Indenture to the
payment of all sums due and to become due on such Securities in respect of principal and premium, if any, and interest; but such moneys need not be segregated from other funds except to the extent required by law.
Section 12.08 Deposits of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this Article, if the Securities of
any series are payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited with the Trustee under the foregoing provisions of this Article shall be as set forth in a Board Resolution, a
Company Order or in one or more supplemental indentures hereto and may be deposited with an entity appointed by the Company and reasonably acceptable to the Trustee for purposes of holding the funds until payment to Holders.
Section 12.09 Return of Unclaimed Moneys. Subject to applicable abandoned property law, any moneys deposited with the Trustee or any
Paying Agent not applied but remaining unclaimed by the Holders of Securities for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Securities shall have become due and payable shall be repaid to
the Company by the Trustee or such agent on written demand. Thereafter, the Holder of any of the Securities entitled to receive such payment shall look only to the Company for the payment thereof unless applicable abandoned property designates
another person, and the Trustee shall have no further liability with respect to such money.
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IMMUNITY OF CERTAIN PERSONS
Section 13.01 No Personal Liability. No recourse shall be had for the payment of the principal of, or the premium, if any, or
interest on, any Security or for any claim based thereon or otherwise in respect thereof or of the Indebtedness represented thereby, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitutional provision, 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 the Securities are solely corporate obligations, and that no personal liability whatsoever shall attach to, or be incurred
by, any incorporator, stockholder, officer, director or employee, as such, past, present or future, of the Company or of any successor corporation, either directly or 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, promises or agreements contained in this Indenture or in any of the Securities, or to be implied herefrom or therefrom, and that all liability, if any, of that
character against every such incorporator, stockholder, officer, director or employee is, by the acceptance of the Securities and as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities
expressly waived and released.
SUPPLEMENTAL INDENTURES
Section 14.01 Without Consent of Securityholders. Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any one or more of or all the following purposes:
(a) to add to the covenants and agreements of the Company, to be observed thereafter and during the period, if any, in such
supplemental indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders of all or any series of the Securities (and if such covenants, agreements and Events of Default are to be for
the benefit of fewer than all series of Securities, stating that such covenants, agreements and Events of Default are expressly being included for the benefit of such series as shall be identified therein), or to surrender any right or power herein
conferred upon the Company;
(b) to delete or modify any Events of Default with respect to any series of the Securities, the form and terms of which are being
first established pursuant to such supplemental indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable to fewer than all such series of the Securities, specifying the series to which such Event of Default is
applicable), and to specify the rights and remedies of the Trustee and the Holders of such Securities in connection therewith;
(c) to add to or change any of the provisions of this Indenture to provide, change or eliminate any restrictions on the payment of
principal of or premium, if any, on Securities; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect;
(d) to add, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that
if such addition change or elimination shall adversely affect the interests of the Holders of securities of any series in any material respect, such addition, change or elimination shall become effective with respect to such series only when no
Security of such series remains Outstanding;
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(e) to evidence the succession of another entity to the Company, or successive successions, and the assumption by such successor of
the covenants and obligations of the Company contained in the Securities of one or more series and in this Indenture or any supplemental indenture;
(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to one or more series of
Securities and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c);
(g) to secure any series of Securities;
(h) to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as permitted by the terms thereof;
(i) to cure any ambiguity or inconsistency or to correct or supplement any provision contained herein or in any indenture
supplemental hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform the terms hereof, as amended and supplemented, that are applicable to the Securities of any series
to the description of the terms of such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time of initial sale thereof;
(j) to add to or change or eliminate any provision of this Indenture as shall be necessary in accordance with any amendments to the
Trust Indenture Act;
(k) to add guarantors or co-obligors with respect to any series of Securities or to release guarantors or co-obligors from their
guarantees of Securities in accordance with the terms of the applicable series of Securities;
(l) to provide for uncertificated securities in addition to certificated securities;
(m) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect;
(n) to prohibit the authentication and delivery of additional series of Securities;
(o) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities
may be listed or traded;
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(p) to provide for the payment by the Company of additional amounts in respect of taxes imposed on certain Holders and for the
treatment of such additional amounts as interest and for all matters incidental thereto; or
(q) to establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth,
or other conditions, limitations or restrictions thereafter to be observed.
Subject to the provisions of Section 14.03, the Trustee is authorized to join with the Company in the execution of any such supplemental indenture, to make the further agreements and stipulations which may be therein
contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section 14.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding.
Section 14.02 With Consent of Securityholders; Limitations.
(a) With the consent of the Holders (evidenced as provided in Article VIII) of a not less than a majority in principal amount of the
Outstanding Securities affected by such supplemental indenture (voting as a single class), the Company and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such series to be affected; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of each such series affected thereby,
(i) extend 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 any premium payable thereon, or extend the Stated Maturity of, or change the Currency in which the principal of and premium, if any, or interest on such Security is
denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon acceleration of the Maturity thereof pursuant to Section 7.02, change the priority of payment of any Security
or, in the case of any subordinated Security, the definition of Senior Indebtedness applicable thereto, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or materially adversely affect the economic terms of any right to convert or exchange any Security as may be provided pursuant to Section 3.01; or
(ii) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any 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
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(iii) modify any of the provisions of this Section, Section 7.06 or Section 6.05, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 6.05, or the deletion of this proviso, in accordance with the requirements of Sections
11.06 and 14.01(f); or
(iv) [Reserved]; or
(v) modify, without the written consent of the Trustee, the rights, duties or immunities of the
Trustee.
(b) A supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
(c) It shall not be necessary for the consent of the Securityholders under this Section 14.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d) The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled to
give a written consent or waive compliance by the Company as authorized or permitted by this Section. Such record date shall not be more than 60 days prior to the first solicitation of such consent or waiver or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e) Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this
Section 14.02, the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of Securities at their addresses as the same shall then appear in the Register of the Company. 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 14.03 Trustee Protected. Upon the request of the Company, accompanied by the
Officer’s Certificate and Opinion of Counsel required by Section 16.01 (provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof) and evidence reasonably satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be executed pursuant to Section 14.02, the Trustee shall join with the Company in the execution of said supplemental indenture unless said supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in relying upon such Officer’s Certificate and Opinion of Counsel.
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Section 14.04 Effect of Execution of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article XIV, this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise expressly provided, the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of all of the Securities or of the Securities of any series affected, as the case may be, shall thereafter be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 14.05 Notation on or Exchange of Securities. Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then Outstanding in equal aggregate principal amounts, and such exchange shall be made without cost to the Holders of the Securities.
Section 14.06 Conformity with TIA. Every supplemental indenture executed pursuant to the provisions of this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SUBORDINATION OF SECURITIES
Section 15.01 Agreement to Subordinate. In the event a series of Securities is designated as subordinated pursuant to Section
3.01, and except as otherwise provided in a Company Order or in one or more indentures supplemental hereto, the Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Securities of such series by his, her or its
acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities of such series is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness. In the event a series of Securities is not designated as subordinated pursuant to Section 3.01(t), this Article XV shall have no effect upon the
Securities.
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Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities. Subject to Section
15.01, upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the
Senior Indebtedness and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if any)
and interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any) or interest, if any, on Indebtedness evidenced by the Securities;
(b) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which
the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XV shall be paid by the liquidation trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness;
(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written
notice to a Responsible Officer of the Trustee, to the holder of such Senior Indebtedness or his, her or its representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such
Senior Indebtedness may have been issued, ratably as aforesaid, as calculated by the Company, for application to payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
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(d) Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness (to the extent that distributions otherwise payable to such holder have been applied to the payment of Senior Indebtedness) to receive payments or distributions of cash, property or securities of the Company
applicable to Senior Indebtedness until the principal of (and premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders of the Securities of cash, property or securities
otherwise distributable to the holders of Senior Indebtedness shall, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities be deemed to be a payment by the Company to or on account of
the Securities. It is understood that the provisions of this Article XV are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on
the other hand. Nothing contained in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities as and when the same shall become due and payable
in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or in the Securities prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of Section 15.06, shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereof and all other facts pertinent thereto or to this Article XV.
Section 15.03 No Payment on Securities in Event of Default on Senior Indebtedness. Subject to Section 15.01, no payment by the
Company on account of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at any time if: (i) a default on Senior Indebtedness exists that permits the holders of such Senior Indebtedness to accelerate
its maturity and (ii) the default is the subject of judicial proceedings or the Company has received notice of such default. The Company may resume payments on the Securities when full payment of amounts then due for principal (premium, if any),
sinking funds and interest on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 15.03, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, but only to the extent that the holders of such Senior Indebtedness (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days of such
payment of the amounts then due and owing on such Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Senior Indebtedness.
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Section 15.04 Payments on Securities Permitted. Subject to Section 15.01, nothing contained in this Indenture or in any of the
Securities shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections 15.02 and 15.03, payments of principal of (or premium, if any) or interest, if any, on the Securities or
(b) prevent the application by the Trustee of any moneys or assets deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or interest, if any, on the Securities, unless a Responsible Officer of the
Trustee shall have received at its Corporate Trust Office written notice of any fact prohibiting the making of such payment from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such trustee more than two Business Days prior to the date fixed for such payment.
Section 15.05 Authorization of Securityholders to Trustee to Effect Subordination. Subject to Section 15.01, each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article XV and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 15.06 Notices to Trustee. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any
fact known to the Company that would prohibit the making of any payment of monies or assets to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Article XV. Subject to Section 15.01, notwithstanding the
provisions of this Article XV or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any fact which would prohibit
the making of any payment of moneys or assets to or by the Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in the case of a Responsible Officer of the Trustee, at the
Corporate Trust Office of the Trustee) written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects conclusively to presume that no such facts exist; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys or assets may become payable for any purpose (including, without limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Security) a
Responsible Officer of the Trustee shall not have received with respect to such moneys or assets the notice provided for in this Section 15.06, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys or assets and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it within two Business Days prior to such date. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
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Section 15.07 Trustee as Holder of Senior Indebtedness. Subject to Section 15.01, the Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder. Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or 11.01.
Section 15.08 Modifications of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal or extension of the
time of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default
thereunder, may be made or done all without notice to or assent from the Holders of the Securities or the Trustee. To the extent permitted by applicable law, no compromise, alteration, amendment, modification, extension, renewal or other change
of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or
of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article XV or of the Securities relating to the subordination
thereof.
Section 15.09 Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to Section 15.01, upon any payment or
distribution of assets of the Company referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
Section 15.10 Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01, amounts and U.S.
Government Obligations deposited in trust with the Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit, prohibited to be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.
Section 15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company, or any other Person, moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise.
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MISCELLANEOUS PROVISIONS
Section 16.01 Certificates and Opinions as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions 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 have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 6.04 of this Indenture) shall include (i) a statement that the Person giving such certificate or opinion has read such covenant or
condition; (ii) 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; (iii) a statement that, in the view or opinion of such
Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed view or opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or
not, in the view or opinion of such Person, such condition or covenant has been complied with.
(c) Any certificate, statement 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 or her
certificate, statement or opinion is based are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate, statement 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, statement or opinion
or representations with respect to such matters are erroneous.
(d) Any certificate, statement or opinion of an Officer of the Company or of counsel to the Company 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, 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 may be based are erroneous. Any certificate or opinion of any firm of independent registered public
accountants filed with the Trustee shall contain a statement that such firm is independent.
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(e) 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.
(f) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 16.02 Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by, or another provision included in this Indenture which is required to be included in this Indenture by any of the provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control.
Section 16.03 Notices to the Company and Trustee. Any notice or demand authorized by this Indenture to be made upon, given or
furnished to, or filed with, the Company or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be mailed or delivered to:
(a) the Company, at 58 Charles Street, Cambridge, MA 02141, Attention: [ ], email: [ ], or at such other address or email as may have been furnished in writing to the Trustee by the Company.
(b) the Trustee, at 311 S. Wacker Drive, Ste. 6200B, Mailbox #44, Chicago, IL 60606, Attention: , email: .
Any such notice, demand or other document shall be in the English language.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using
Electronic Means. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The
Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written
instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized Instructions, and the risk of
interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting
Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its
particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
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Section 16.04 Notices to Securityholders; Waiver. Any notice required or permitted to be given to Securityholders shall be
sufficiently given (unless otherwise herein expressly provided),
(a) if to Holders, if given in writing by first class mail, postage prepaid, to such Holders at their addresses as the same shall
appear on the Register of the Company; provided, that in the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder; or
(b) If a series of Securities has been issued in the form of one or more Global Securities through DTC as Depositary, notice may be
provided with respect to such series of Securities by delivery of such notice to DTC for posting through its “Legal Notice Service” (LENS) or a successor system thereof.
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 delivered to the Trustee, but such delivery shall not be a condition precedent to the validity of any action taken in reliance on such waiver. 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, and any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any particular Holder shall not affect the sufficiency of such notice with
respect to other Holders, and any notice that is published in the manner herein provided shall be conclusively presumed to have been duly given.
Section 16.05 Legal Holiday. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment
Date, Redemption Date or Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities of that series, then payment of principal and premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such Interest Payment Date, Redemption Date or Maturity and no interest shall accrue on such payment for
the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be, to such Business Day if such payment is made or duly provided for on such Business Day.
Section 16.06 Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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Section 16.07 Successors and Assigns. All covenants and agreements in this Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 16.08 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 16.09 Benefits of Indenture. Nothing in this Indenture expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors and the Holders of the Securities any benefit or any right, remedy or claim under or by
reason of this Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained shall be for the sole and exclusive benefit of the parties
hereto and their successors and of the Holders of the Securities.
Section 16.10 Counterparts Originals. This Indenture may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 16.11 Governing Law; Waiver of Trial by Jury; Submission to Jurisdiction. This Indenture and the Securities shall be
deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
The Company irrevocably and unconditionally submits to the exclusive jurisdiction of any U.S. federal or New York State court located in the Borough of Manhattan, The City of New York over any suit, action or proceeding
arising out of or relating to this Indenture or the Securities. The Company irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to whose jurisdiction the Company is or may be subject, by suit upon judgment. The Company further agrees that nothing herein shall affect any Holder’s right to effect service of process in any other manner
permitted by law or bring a suit action or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable law.
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Section 16.12 Electronic Signatures. This Indenture and any certificate, agreement or other document to be signed in
connection with this Indenture and the transactions contemplated hereby shall be valid, binding and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual
signature, (ii) a faxed, scanned or photocopied manual signature or (iii) in the case of this Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the transactions contemplated hereby, any
electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions
of the Uniform Commercial Code (collectively, “Signature Law”). Each electronic signature or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original
manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to
investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other
Signature Law due to the character or intended character of the writings. Notwithstanding anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly
agreed to by the Trustee pursuant to reasonable procedures approved by the Trustee.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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GE VERNOVA INC.,
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as Issuer
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By:
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Name:
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Title:
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THE BANK NEW YORK MELLON,
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as Trustee
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By:
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Name:
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Title:
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[Signature Page to Base Indenture]
Exhibit 5.1
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ONE MANHATTAN WEST
NEW YORK, NY 10001
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TEL: (212) 735-3000
FAX: (212) 735-2000
www.skadden.com
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FIRM/AFFILIATE OFFICES
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BOSTON
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CHICAGO
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HOUSTON
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LOS ANGELES
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PALO ALTO
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WASHINGTON, D.C.
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WILMINGTON
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ABU DHABI
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BEIJING
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BRUSSELS
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FRANKFURT
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HONG KONG
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LONDON
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MUNICH
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PARIS
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SÃO PAULO
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SEOUL
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SINGAPORE
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TOKYO
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TORONTO
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January 29, 2026
GE Vernova Inc.
58 Charles Street
Cambridge, MA 02141
| Re: | GE Vernova Inc. |
| Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special United States counsel to GE Vernova Inc., a Delaware corporation (the “Company”), in connection with the registration statement on Form S-3 (the “Registration Statement”) to be
filed on the date hereof by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”). The Registration Statement relates to the issuance and sale by the
Company from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act (the “Rules and Regulations”), of (i) shares of common stock, par value $0.01 per share, of the
Company (“Common Stock”), (ii) shares of preferred stock, par value $0.01 per share, of the Company (“Preferred Stock”), which may be issued in one or more series, (iii) debt securities of the Company (“Debt Securities”),
which may be issued in one or more series under an indenture (the “Indenture”) proposed to be entered into by the Company and The Bank of New York Mellon, as trustee, the form of which is filed as an exhibit to the Registration Statement,
(iv) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities (“Warrants”), which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into by
the Company and one or more warrant agents to be named therein, (v) units of the Company (“Units”), each consisting of one or more Common Stock, Preferred Stock, Debt Securities, Warrants or any combination of such securities, which may be
issued pursuant to one or more agreements (each, a “Unit Agreement”) proposed to be entered into by the Company and one or more unit agents to be named therein, and (vi) such indeterminate number of shares of Common Stock or Preferred
Stock and indeterminate amount of Debt Securities and such indeterminate number of Units as may be issued upon conversion, exchange or exercise, as applicable, of any Preferred Stock, Debt Securities or Warrants or settlement of any Units,
including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments determined at the time of offering (collectively, “Indeterminate Securities”). The Common Stock, Preferred Stock, Debt
Securities, Warrants, Units and Indeterminate Securities offered pursuant to the Registration Statement are collectively referred to herein as the “Securities.”
GE Vernova Inc.
January 29, 2026
Page 2
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the Registration Statement;
(b) the form of Indenture filed as an exhibit to the Registration Statement;
(c) an executed copy of a certificate of Richmond Glasgow, Vice President, Chief Corporate Counsel and Deputy
Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);
(d) a copy of the Company’s Certificate of Incorporation, certified by the Secretary of State of the State of Delaware as of January 29, 2026 (the “Certificate of
Incorporation”), and certified pursuant to the Secretary’s Certificate as being in effect on the date of the adoption of the resolutions referred to below and as of the date hereof;
(e) a copy of the Company’s Bylaws, as amended, and certified pursuant to the Secretary’s Certificate as being in effect on the date of the adoption
of the resolutions referred to below and as of the date hereof; and
(f) a copy of certain resolutions of the Board of Directors of the Company, adopted at meetings of the Board of Directors held on September 25, 2026 and September 26, 2025 and
January 16, 2026, certified pursuant to the Secretary’s Certificate.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of
officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
GE Vernova Inc.
January 29, 2026
Page 3
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated
herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including the facts and conclusions set forth
in the Secretary’s Certificate and the Certificate of Incorporation.
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York, and (ii) the General Corporation Law of the State of Delaware (the “DGCL”) (all of
the foregoing being referred to as “Opined-on Law”). The Securities may be issued from time to time on a delayed or continuous basis, and this opinion letter is limited to the laws, including the rules and regulations, as in effect on the
date hereof, which laws are subject to change with possible retroactive effect.
As used herein, “Transaction Documents” means the Indenture and the supplemental indentures and officer’s certificates establishing the terms of the Debt Securities pursuant thereto, the Warrant Agreements,
the Unit Agreements and any applicable underwriting or purchase agreement.
The opinions stated in paragraphs 1 through 5 below presume that all of the following (collectively, the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein:
(i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) an appropriate prospectus supplement or term sheet with respect to such Securities has
been prepared, delivered and filed in compliance with the Securities Act and the applicable Rules and Regulations; (iii) the applicable Transaction Documents shall have been duly authorized, executed and delivered by the Company and the other
parties thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto; (iv) the Board of Directors of
the Company, including any duly authorized committee thereof, shall have taken all necessary corporate action to approve the issuance and sale of such Securities and related matters and appropriate officers of the Company have taken all related
action as directed by or under the direction of the Board of Directors of the Company; and (v) the terms of the applicable Transaction Documents and the issuance and sale of such Securities have been duly established in conformity with the
Certificate of Incorporation of the Company so as not to violate any applicable law, the Certificate of Incorporation of the Company or the Bylaws of the Company, or result in a default under or breach of any agreement or instrument binding
upon the Company or its properties, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or its properties.
GE Vernova Inc.
January 29, 2026
Page 4
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. With respect to any shares of Common Stock offered by the Company, including any Indeterminate Securities constituting Common Stock (the “Offered Common Stock”), when (a) the general conditions
shall have been satisfied, (b) if the Offered Common Stock is to be certificated, certificates in the form required under the DGCL representing the shares of Offered Common Stock are duly executed and countersigned or, if the Offered Common
Stock is to be issued in uncertificated form, a resolution of the Board of Directors has duly authorized the issuance of the Offered Common Stock in uncertificated form, and (c) the shares of Offered Common Stock are registered in the Company’s
share registry and delivered upon payment of the agreed-upon consideration therefor, the shares of Offered Common Stock, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document,
will be duly authorized by all requisite corporate action on the part of the Company under the DGCL and validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.01 per share of Common Stock.
2. With respect to the shares of any series of Preferred Stock offered by the Company, including any Indeterminate Securities constituting Preferred Stock of such series (the “Offered Preferred Stock”),
when (a) the general conditions shall have been satisfied, (b) the Board of Directors of the Company, or a duly authorized committee thereof, has duly adopted a Certificate of Designations for the Offered Preferred Stock in accordance with the
DGCL (the “Certificate”), (c) the filing of the Certificate with the Secretary of State of the State of Delaware has duly occurred, (d) if the Offered Preferred Stock is to be certificated, certificates in the form required under the DGCL
representing the shares of Offered Preferred Stock are duly executed and countersigned or, if the Offered Preferred Stock is to be issued in uncertificated form, a resolution of the Board of Directors has duly
authorized the issuance of the Offered Preferred Stock in uncertificated form and (e) the shares of Offered Preferred Stock are registered in the Company’s share registry and delivered upon payment of the agreed-upon consideration therefor, the
shares of Offered Preferred Stock, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document, will be duly authorized by all requisite corporate action on the part of the Company under
the DGCL and validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.01 per share of Preferred Stock.
3. With respect to any series of Debt Securities offered by the Company, including any Indeterminate Securities constituting Debt Securities of such series (the “Offered Debt Securities”), when (a)
the general conditions shall have been satisfied, (b) the indenture has been qualified under the Trust Indenture Act of 1939, (c) the issuance, sale and terms of the Offered Debt Securities and related matters have been approved and established
in conformity with the applicable Transaction Documents and (d) the certificates evidencing the Offered Debt Securities have been issued in a form that complies with the provisions of the applicable Transaction Documents and have been duly
executed and authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Documents and issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document
upon payment of the agreed-upon consideration therefor, the Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the
State of New York.
GE Vernova Inc.
January 29, 2026
Page 5
4. With respect to any Warrants offered by the Company (the “Offered Warrants”), when (a) the general conditions shall have been satisfied, (b) the Common Stock, Preferred Stock and/or Debt
Securities for which the Offered Warrants are exercisable have been duly authorized for issuance by the Company and (c) certificates evidencing the Offered Warrants have been duly executed, delivered and countersigned in accordance with the
provisions of the applicable Warrant Agreement, the Offered Warrants, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed-upon consideration therefor,
will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
5. With respect to any Units offered by the Company (the “Offered Units”), when (a) the general conditions shall have been satisfied, (b) the Common Stock, Preferred Stock, Debt Securities, Warrants
and/or any combination of such securities included in such Offered Units have been duly authorized for issuance by the Company and (c) certificates evidencing the Offered Units have been duly executed, delivered and countersigned in accordance
with the provisions of the applicable Unit Agreement, the Offered Units, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed-upon consideration
therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
The opinions stated herein are subject to the following assumptions and qualifications:
(a) we do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer,
preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions stated herein are limited by such laws and governmental orders and by general principles of equity (regardless of whether enforcement
is sought in equity or at law);
(b) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Documents or the transactions contemplated
thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c) except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the valid and binding obligation of
each party to such Transaction Document, enforceable against such party in accordance with its terms;
GE Vernova Inc.
January 29, 2026
Page 6
(d) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification, contribution, non-reliance, exculpation, release,
limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any such provision purports to,
or has the effect of, waiving or altering any statute of limitations;
(e) we do not express any opinion with respect to the enforceability of any provision of any Transaction Document to the extent that such section purports to bind any Opinion Party to the exclusive
jurisdiction of any particular federal court or courts;
(f) we call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting
the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of
America in any action arising out of or relating to any Transaction Document;
(g) the opinions stated herein are limited to the agreements and documents specifically identified in the opinions contained herein (the “Specified Documents”) without regard to any agreement or other
document referenced in any such Specified Document (including agreements or other documents incorporated by reference or attached or annexed thereto) and without regard to any other agreement or document relating to any such Specified Document that is not a Transaction Document;
(h) we have assumed that any agent of service will have accepted appointment as agent to receive service of process and call to your attention that we do not express any opinion if and to the extent such
agent shall resign such appointment. Further, we do not express any opinion with respect to the irrevocability of the designation of such agent to receive service of process;
(i) subsequent to the effectiveness of the Indenture and immediately prior to the issuance of any series of Offered Debt Securities, the Indenture has not been amended, restated,
supplemented or otherwise modified in any way that affects or relates to such series of Offered Debt Securities other than by the applicable Transaction Documents relating to such series of Offered Debt Securities;
(k) we have assumed that the laws of the State of New York will be chosen to govern any Transaction Documents entered into subsequent to the date hereof and that such choice is and will be a valid and legal
provision;
(l) we have assumed that the Indenture will be duly authorized, executed and delivered by the trustee in substantially the form reviewed by us;
GE Vernova Inc.
January 29, 2026
Page 7
(m) we do not express any opinion as to the creation, validity, perfection or priority of any security interest;
(n) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document providing for indemnity by any party thereto against any loss in obtaining the
currency due to such party under any Transaction Document from a court judgment in another currency;
(o) we have assumed that the choice of a currency other than U.S. dollars as the currency in which any Securities may be denominated does not contravene any exchange control or other laws of the
jurisdiction of any such currency, and further we call to your attention that a court may not award a judgment in any currency other than U.S. dollars; and
(p) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Document, the opinions stated herein are
subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity and constitutionality.
In addition, in rendering the foregoing opinions we have also assumed that:
(a) neither the execution and delivery by the Company of the Transaction Documents nor the performance by the Company of its obligations thereunder, including the issuance and sale of the applicable
Securities: (i) constitutes or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which the Company or its property is subject, (ii) contravenes or will contravene any order or decree of any
governmental authority to which the Company or its property is subject, or (iii) violates or will violate any law, rule or regulation to which the Company or its property is subject (except that we do not make the assumption set forth in this
clause (iii) with respect to the Opined-on Law); and
(b) neither the execution and delivery by the Company of the Transaction Documents nor the performance by the Company of its obligations thereunder, including the issuance and sale of the applicable
Securities, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
We hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion letter with the
Commission as an exhibit to the Registration Statement. 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 Securities Act or the Rules and Regulations. This
opinion letter is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
GE Vernova Inc.
January 29, 2026
Page 8
|
Very truly yours,
|
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
LAK
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated January 29, 2026 relating to the financial statements of GE Vernova Inc. and the effectiveness of GE Vernova Inc.’s internal control
over financial reporting, appearing in the Annual Report on Form 10-K of GE Vernova Inc. for the year ended December 31, 2025. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
January 29, 2026
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
New York
(Jurisdiction of incorporation
if not a U.S. national bank)
|
13‑5160382
(I.R.S. employer
identification no.)
|
|
240 Greenwich Street, New York, NY
(Address of principal executive offices)
|
10286
(Zip code)
|
|
Legal Department
The Bank of New York Mellon
240 Greenwich Street
New York, New York 10286
(212) 635-1270
(Name, address and telephone number of agent for service)
|
GE VERNOVA INC.
(Exact name of obligor as specified in its charter)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
92-2646542
(I.R.S. employer
identification no.)
|
|
58 Charles Street
Cambridge, Massachusetts
(Address of principal executive offices)
|
02141
(Zip code)
|
Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
| 1. |
General information. Furnish the following information as to the trustee:
|
| (a) |
Name and address of each examining or supervising authority to which it is subject.
|
|
Name
|
Address
|
|
Superintendent of the Department of Financial Services of the State of New York
|
One State Street, New York, NY 10004-1511
|
|
Federal Reserve Bank of New York
|
33 Liberty Street
New York, NY 10045
|
|
Federal Deposit Insurance Corporation
|
550 17th Street, N.W.
Washington, D.C. 20429
3501 N. Fairfax Drive
Arlington, VA 22226
|
|
The Clearing House Association, L.L.C.
|
1114 Avenue of the Americas
New York, NY 10036
|
| (b) |
Whether it is authorized to exercise corporate trust powers.
|
Yes.
| 2. |
Affiliations with the Obligor.
|
If the obligor is an affiliate of the trustee, describe each such
affiliation.
Based upon an examination of the books and records of the trustee, and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.
| 3-15. |
Pursuant to General Instruction B of the Form T-1, no responses are included for Items 3-15 of this Form T-1 because, to the best of The Bank of New York Mellon’s knowledge, the obligor is not in default on any
securities issued under any indenture under which The Bank of New York Mellon acts as trustee and the trustee is not a foreign trustee as provided under Item 15.
|
| 16. |
List of Exhibits.
|
The following exhibits are to be filed as a part of the statement of eligibility of The Bank of New York Mellon. Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a‑29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York and formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T‑1 filed with Registration Statement No. 33‑6215, Exhibits 1a and 1b to Form T‑1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T‑1 filed with Registration
Statement No. 33‑29637 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735.)
|
| 4. |
A copy of the existing By‑Laws of the trustee.
|
| 6. |
The consent of the trustee required by Section 321(b) of the Act.
|
| 7. |
A copy of the latest report of condition of the trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 29th day of January
2026.
|
THE BANK OF NEW YORK MELLON
|
|||
|
By:
|
/s/ Stacey B. Poindexter
|
||
| |
Name: Stacey B. Poindexter
|
|
|
| |
Title: Vice President
|
|
|
EXHIBIT 4
BY-LAWS
of
The Bank of New York Mellon
As Amended and Restated through September 9, 2021
Table of Contents
|
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Page No. | |
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ARTICLE I Stockholders
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3
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SECTION 1.1. Annual Meeting
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3
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|
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SECTION 1.2. Special Meetings
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3
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|
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SECTION 1.3. Notice of Meetings
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3
|
|
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SECTION 1.4 Adjournments
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4
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|
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SECTION 1.5. Quorum of Stockholders and Action by the Stockholders.
|
4 |
|
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SECTION 1.6 Action without a Meeting
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4
|
|
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ARTICLE II Board of Directors
|
4
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|
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SECTION 2.1. Number of Directors
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4
|
|
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SECTION 2.2. [Reserved]
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4
|
|
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SECTION 2.3. Meetings of the Board
|
4
|
|
|
SECTION 2.4. Quorum of Directors and Action by the Board
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5
|
|
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SECTION 2.5. Removal or Resignation of Directors
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5
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|
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SECTION 2.6. Vacancies
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5
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|
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SECTION 2.7. Compensation
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5
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|
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SECTION 2.8. Minutes
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5
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|
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SECTION 2.9. Reports
|
6
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|
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SECTION 2.10 Action without a Meeting
|
6 | |
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ARTICLE III [Reserved]
|
6 |
|
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ARTICLE IV Committees
|
6 |
|
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SECTION 4.1. Committees of Directors Officers and/ or Other Persons
|
6 |
|
| SECTION 4.2. Compensation | 6 |
|
| SECTION 4.3. Manner of Acting | 6 |
|
| ARTICLE V Officers | 6 |
|
|
SECTION 5.1. Principal Executive Officers
|
6 |
|
|
SECTION 5.2. Senior Executive Officers
|
7 | |
|
SECTION 5.3. Other Senior Officers
|
7 |
|
| SECTION 5.4. Appointed Officers | 7 |
|
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SECTION 5.5. Bonds
|
7 |
|
| SECTION 5.6. General Supervisory Powers | 7 |
|
| SECTION 5.7. Executive Officers | 7 |
|
|
SECTION 5.8. Senior Vice Presidents, Managing Directors, Directors, First Vice Presidents and Vice Presidents
|
7 |
|
| SECTION 5.9. Secretary | 7 |
|
| SECTION 5.10. Treasurer | 8 |
|
| SECTION 5.11. Comptroller | 8 |
|
| SECTION 5.12. Chief Auditor | 8 |
|
| SECTION 5.13. Other Officers | 8 |
|
|
ARTICLE VI Signing Authorities
|
8
|
|
|
SECTION 6.1. [Reserved]
|
8
|
|
|
SECTION 6.2. Senior Signing Powers
|
8
|
|
|
SECTION 6.3. Limited Signing Powers
|
9
|
|
|
SECTION 6.4. Rescission of Signing Powers
|
9
|
|
|
SECTION 6.5. Powers of Attorney
|
9
|
|
|
SECTION 6.6. Chief Auditor
|
9
|
|
|
SECTION 6.7. Signatures
|
.9
|
|
|
ARTICLE VII Indemnification
|
9
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|
|
SECTION 7.1. Indemnification
|
9
|
|
|
SECTION 7.2. Other Indemnification
|
10
|
|
|
SECTION 7.3. Insurace
|
10
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|
|
ARTICLE VIII Capital Stock
|
10
|
|
|
SECTION 8.1. Certificates of Stock
|
10
|
|
|
SECTION 8.2. Transfer of Certificates
|
10
|
|
|
SECTION 8.3. New Certificates
|
10
|
|
|
SECTION 8.4. Holders of Record
|
10
|
|
|
ARTICLE IX Corporate Seal
|
11
|
|
|
SECTION 9.1. The Seal
|
11
|
|
|
ARTICLE X By-Laws
|
11
|
|
|
SECTION 10.1. Amendments
|
11
|
|
|
SECTION 10.2. Inspection
|
11
|
|
2
BY-LAWS
of
The Bank of New York Mellon
As amended and restated through September 9, 2021
ARTICLE I
STOCKHOLDERS
SECTION 1.1. Annual Meeting. The annual meeting of stockholders of The Bank of New York Mellon (the “Bank”) for the election of directors and the transaction of such other
business as properly may be brought before such meeting shall be held within the first four months of the Bank’s fiscal year, unless otherwise permitted under the New York Banking Law (the “Banking Law”) or applicable regulation, at the principal
office of the Bank, or such other place in the city in which such principal office is located as shall be specified in the notice of such meeting, on such day and at such hour as may be fixed by the Board of Directors (the “Board”); provided,
however, that so long as The Bank of New York Mellon Corporation owns 100 percent of the outstanding common stock of the Bank, directly or indirectly through one or more wholly-owned subsidiaries, action to elect directors may be taken by written
consent in lieu of an annual meeting and the Board will not be required to fix a date and time for an annual meeting of the Bank’s stockholders.
SECTION 1.2. Special Meetings. Special meetings of the stockholders of the Bank (the “stockholders”) may be called by the Board, the Executive Chairman (as defined below), the
Chief Executive Officer or the President and shall be called upon the written request of the holders of record of not less than twenty percent of the outstanding shares of stock of the Bank entitled to vote at the meeting requested to be called. Such
meetings of stockholders shall be held on such day and at such hour and at such place, within or without the State of New York (or may not be held at any place, but may instead be held solely by means of remote communication), as may be fixed by the
Board.
SECTION 1.3. Notice of Meetings. Notice of each meeting of stockholders shall be given in writing, personally or by mail, not less than ten nor more than fifty days before the
date of the meeting, to each stockholder entitled to vote at such meeting, and shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. If mailed, such notice
shall be deemed to have been given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Bank.
Notwithstanding the foregoing, notice of meeting need not be given to any stockholder who submits a signed waiver of notice, in person or by proxy, whether before or after the
meeting. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him or her.
3
SECTION 1.4. Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Bank may transact any
business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
SECTION 1.5. Quorum of Stockholders and Action by Stockholders. The holders of a majority of the shares entitled to vote thereat shall constitute a quorum at a meeting of
stockholders for the transaction of any business. At all meetings of stockholders, a quorum being present, all matters, except as otherwise provided by law or the Organization Certificate of the Bank, shall be authorized by a majority of the votes
cast at the meeting by the stockholders present in person or by proxy and entitled to vote thereon. The stockholders present may adjourn the meeting despite the absence of a quorum.
SECTION 1.6 Action without a Meeting. Any action that may be taken by the stockholders at a duly convened meeting may also betaken pursuant to waiver of notice thereof and upon
the unanimous written consent of all stockholders of the Bank; such consent shall set forth the action so taken and shall be filed with the Secretary.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1. Number of Directors. The business of the Bank shall be managed by the Board, which shall consist of such number of directors, within the minimum and maximum limits
prescribed in the Organization Certificate of the Bank and the Banking Law, as from time-to-time shall be determined by the vote of a majority of the directors then in office or by the stockholders. In the event of any increase in the number of
directors, additional directors shall be elected in the manner herein prescribed for the filling of vacancies. No decrease in the number of directors shall shorten the term of any incumbent director. Each director or, where applicable, all directors
collectively must possess such qualifications as to citizenship, age and active service as an officer or employee of the Bank as are prescribed by the Banking Law. Directors shall hold office until the next annual meeting of the stockholders and
until their successors are elected and have qualified.
SECTION 2.2. [Reserved]
SECTION 2.3. Meetings of the Board. An annual meeting of the Board shall be held in each year within fifteen days after the annual meeting of stockholders. Regular meetings of
the Board shall be held on such day and at such hour as the directors may fix from time-to-time, and no notice thereof need be given. In case any date for a meeting shall fall on a public holiday, such meeting shall be held on the next succeeding
business day. Special meetings of the Board may be held at any time upon the call of the Executive Chairman of the Board or the Chief Executive Officer or, in their absence, another principal executive officer and shall be called upon the written
request of any three directors.
Meetings of the Board shall be held at such places within or without the State of New York (or may not be held at any place, but may instead be held solely by means of remote
communication) as may be fixed by the Board. If no place is so fixed, meetings of the Board shall be held at the principal office of the Bank in the City of New York.
4
Notices of the annual and special meetings of the Board shall be given by delivery, mail, facsimile, e-mail or other form of electronic transmission or by oral notice given in
person or by telephone to each director at his or her usual place of business or residence address not later than noon, New York time, on the third day prior to the day on which the meeting is to be held or, if given personally or by telephone, not
later than noon, New York time, on the day before the day on which the meeting is to be held.
Notice of a meeting of the Board need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to him or her.
A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. Except for announcement at the meeting, notice of the
time and place of any adjourned meeting need not be given.
Members of the Board may participate in a meeting of the Board by means of a conference telephone or similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.
SECTION 2.4. Quorum of Directors and Action by the Board. One-third of the entire Board, but in no case less than five directors, shall constitute a quorum for the transaction of
business. Except as otherwise required by law, the Organization Certificate of the Bank or these By-laws, the vote of a majority of the directors present at a meeting at the time of such vote, if a quorum is then present, shall be the act of the
Board.
SECTION 2.5. Removal or Resignation of Directors. Any one or more of the directors may be removed for cause by action of the Board. Any or all of the directors may be removed
with or without cause by vote of the stockholders.
Any director may resign at any time upon written notice to the Board or to the Executive Chairman, the Chief Executive Officer or the Secretary. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective.
SECTION 2.6. Vacancies. All vacancies in the office of director shall be filled by election by the stockholders, except that vacancies not exceeding one-third of the entire Board
may be filled by the affirmative vote of a majority of the directors in office and the directors so elected shall hold office for the balance of the unexpired term.
SECTION 2.7. Compensation. Members of the Board, except members who are officers of The Bank of New York Mellon Corporation or any of its subsidiaries, shall be entitled to
receive such compensation and such fees for attendance as the Board shall fix from time-to-time.
SECTION 2.8. Minutes. Regular minutes of the proceedings of the Board shall be kept in books to be provided for that purpose which shall always be open for the inspection of any
director.
5
SECTION 2.9. Reports. At each regular meeting of the Board there shall be submitted a report of the concerns and business of the Bank, including such reports as shall be required
by law or by regulation of the authorities having jurisdiction over the Bank.
SECTION 2.10. Action without a Meeting. Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, to the extent permitted by law and
regulation, may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing and such consent is filed with the minutes of the proceedings of the Board or such committee.
ARTICLE III
[Reserved]
ARTICLE IV
COMMITTEES
SECTION 4.1. Committees of Directors, Officers and/ or Other Persons. The Board may appoint, or authorize the Executive Chairman or the Chief Executive Officer or, in their
absence, another principal executive officer to appoint, from time-to-time, such other committees consisting of directors, officers and/ or other persons and having such powers, duties and functions in or relating to the business and affairs of the
Bank as the Board may determine. Each such committee and each member thereof shall serve at the pleasure of the Board and, in the case of any committee appointed by the Executive Chairman, the Chief Executive Officer or another principal executive
officer, at the pleasure of such officer. A majority of all members of any such committee may determine the rules of order and procedure of such committee and the time and place of its meetings, unless the Board, or, in the case of any committee
appointed by the Executive Chairman, the Chief Executive Officer or another principal executive officer, such officer shall otherwise provide.
SECTION 4.2. Compensation. Members of committees, other than officers of The Bank of New York Mellon Corporation or any of its subsidiaries, shall be paid such compensation and
such other fees for attendance at meetings as the Board shall determine from time-to-time.
SECTION 4.3. Manner of Acting. Members of committees may participate in a meeting of such committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.
ARTICLE V
OFFICERS
SECTION 5.1. Principal Executive Officers. The Board at its annual meeting shall elect from its number an Executive Chairman of the Board (the “Executive Chairman”), a Chief
Executive Officer, and a President (each such officer, a “principal executive officer”). The Board may designate the Chief Executive Officer or the President, or one of the persons holding titles provided in Section 5.2, to act as and carry the
additional title of Chief Operating Officer. Officers elected pursuant to this Section 5.1 shall hold office during the pleasure of the Board, which may fill any vacancy and change the designation of the Chief Operating Officer at any regular or
special meeting. Officers elected under this Section 5.1 may be removed with or without cause by the Board.
6
SECTION 5.2. Senior Executive Officers. The Board shall elect, or the Chief Executive Officer may appoint, subject to confirmation by the Board, one or more senior executive
officers, any of whom may be designated Vice Chairman of the Board, Senior Executive Vice President or Executive Vice President, and any such other officers with such titles as may be specified upon election (each such officer, a “senior executive
officer”). Senior executive officers elected or appointed under this Section 5.2 may be removed with or without cause by the Board.
SECTION 5.3. Other Senior Officers. The Board shall elect a Secretary (who shall be a different person from the Chief Executive Officer and the President); a Treasurer; a
Comptroller; a Chief Auditor; and such other officers with such titles as may be specified upon election. The Chief Executive Officer or, in his or her absence, another principal executive officer, may remove any of the officers elected under this
Section 5.3 with or without cause with the approval of the Board.
SECTION 5.4. Appointed Officers. Officers of the Bank carrying titles set forth in this Section 5.4 may be appointed and removed with or without cause by the Chief Executive
Officer or any Senior Executive Vice President or Executive Vice President. Such officers may include one or more Managing Directors; one or more Directors; one or more Senior Vice Presidents; one or more First Vice Presidents; one or more Vice
Presidents; one or more Senior Associates; one or more Associates; and such other officers with such titles as may be specified upon appointment.
SECTION 5.5. Bonds. The Board may require any or all officers or employees to give bonds from time-to-time.
SECTION 5.6. General Supervisory Powers. The Chief Executive Officer or, in his or her absence, another principal executive officer, shall have general supervision of the
policies and operations of the Bank which shall in every case be subject to the oversight of the Board.
SECTION 5.7. Executive Officers. The principal executive officers and the senior executive officers shall participate in the supervision of the policies and operations of the
Bank as directed by the Chief Executive Officer, or, in his or her absence another principal executive officer or a senior executive officer designated by the Chief Executive Officer or the Board, shall direct the general supervision of such policies
and operations.
SECTION 5.8. Senior Vice Presidents, Managing Directors, Directors, First Vice Presidents and Vice Presidents. Senior Vice Presidents, Managing Directors, Directors, First Vice
Presidents and Vice Presidents shall participate in the supervision of operations of the Bank as directed by the Chief Executive Officer, or, in his or her absence another principal executive officer or a senior executive officer designated by the
Chief Executive Officer or the Board. They shall perform such other duties as shall be assigned to them by the Board, the Chief Executive Officer or a principal or senior executive officer.
SECTION 5.9. Secretary. The Secretary shall keep the minutes of all meetings of the Board; shall attend to the giving of such notices of meetings as may be required by these
By-laws; and shall perform all the duties assigned to him or her by the Board or the Chief Executive Officer and in general those duties incident to the office of Secretary. He or she shall have custody of the corporate seal and shall have authority
to affix the same to any documents requiring such seal and to attest the same. The Board or the Chief Executive Officer, or his or her designee, may appoint one or more Assistant Secretaries who shall assist the Secretary in the performance of his or
her duties. In the absence of the Secretary, an Assistant Secretary shall act in his or her stead.
7
SECTION 5.10. Treasurer. The Treasurer shall have the care and custody of all moneys, funds and other property of the Bank which may come into his or her hands and shall perform
such other duties as may be assigned to him or her from time-to-time by the Board or the Chief Executive Officer.
SECTION 5.11. Comptroller. The Comptroller shall exercise general supervision over, and be responsible for, all matters pertaining to the accounting and bookkeeping of the Bank.
He or she shall keep the permanent records of property and indebtedness and of all transactions bearing on the financial affairs of the Bank. The Comptroller shall perform such additional duties as shall be assigned to him or her by the Board or the
Chief Executive Officer. He or she shall at any time on the request of any three directors report to the Board such matters concerning the affairs of the Bank as, in his, her or their judgment, should be brought to the attention of the directors.
SECTION 5.12. Chief Auditor. The Chief Auditor shall report to the Board, which may be through a committee of the Board. He or she shall be responsible for the planning and
direction of the internal auditing function and the evaluation of the internal control safeguards of the Bank. He or she shall perform such additional duties as shall be assigned by the Board, any committee of the Board or the Chief Executive
Officer.
SECTION 5.13. Other Officers. All officers whose duties are not described by these By-laws shall perform such duties as may be designated by the Chief Executive Officer or any
officer authorized by the Chief Executive Officer to do so.
ARTICLE VI
SIGNING AUTHORITIES
SECTION 6.1. [Reserved]
SECTION 6.2. Senior Signing Powers. The Chief Executive Officer, the President, any Vice Chairman, any Senior Executive Vice President, any Executive Vice President or any other
senior officer appointed by the Board pursuant to Section 5.3 (any such officer, an “Authorized Senior Signer”) is authorized to accept, endorse, execute or sign any document, instrument or paper in the name of, or on behalf of, the Bank in all
transactions arising out of, or in connection with, the normal course of the Bank’s business or in any fiduciary, representative or agency capacity and, when required, to affix the seal of the Bank thereto. In such instances as in the judgment of any
Authorized Senior Signer may be proper and desirable, any one of said officers may authorize in writing, including email and other forms of electronic communication or approval, from time-to-time any other officer to have the powers set forth in this
Section 6.2 applicable only to the performance or discharge of the duties of such officer within his or her particular division or function. Any officer of the Bank authorized in or pursuant to Section 6.3 to have any of the powers set forth therein,
other than the officer signing pursuant to this Section 6.2, is authorized to attest to the seal of the Bank on any documents requiring such seal.
8
SECTION 6.3. Limited Signing Powers. In such instances as may be proper and desirable in the judgment of any Authorized Senior Signer or any delegate authorized in writing by any
such Authorized Senior Signer, any such Authorized Senior Signer or delegate (to the extent relating to the performance or discharge of the duties of such delegate within his or her particular division or function) may authorize in writing, including
email and other forms of electronic communication or approval, from time to time any other officer, employee or individual to have the limited signing powers or limited power to affix the seal of the Bank to specified classes of documents set forth
in a resolution of the Board applicable only to the performance or discharge of the duties of such officer, employee or individual within his or her division or function.
SECTION 6.4. Rescission of Signing Powers. Any signing authority authorized by an Authorized Senior Signer or delegate may be rescinded at any time by any one of said persons,
and any signing power authorized in or pursuant to Section 6.3 shall terminate without necessity of further action when the officer or employee having such power leaves the employ of the Bank, but any document, instrument or certificate executed by
an officer or employee having signing authority prior to such termination shall be valid and binding on the Bank.
SECTION 6.5. Powers of Attorney. All powers of attorney on behalf of the Bank shall be executed by any officer of the Bank jointly with the Chief Executive Officer, the
President, any Vice Chairman, any Senior Executive Vice President, any Executive Vice President, any Senior Vice President, any Managing Director, or any Director provided that the execution by such Senior Vice President, Managing Director or
Director of said Power of Attorney shall be applicable only to the performance or discharge of the duties of such officer within his or her particular division or function. Any such power of attorney may, however, be executed by any officer or
officers or person or persons who may be specifically authorized to execute the same by the Board and, at foreign branches only, by any two officers provided one of such officers is the Branch Manager.
SECTION 6.6. Chief Auditor. The Chief Auditor or any officer designated by the Chief Auditor is authorized to certify in the name of, or on behalf of the Bank, in its own right
or in a fiduciary or representative capacity, as to the accuracy and completeness of any account, schedule of assets, or other document, instrument or paper requiring such certification.
SECTION 6.7. Signatures. The signature authorized by or pursuant to these By-laws of any signatory authorized by these By-laws on any document may be manual, facsimile or
electronic, to the extent permitted by law.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification. Any person made, or threatened to be made, a party to any action or proceeding, whether civil or criminal, by reason of the fact that he, she, or
his or her testator or intestate, is or was a director or officer of the Bank or serves or served any other corporation in any capacity, at the request of the Bank, shall be indemnified by the Bank and the Bank may advance his or her related
expenses, to the full extent permitted by law. Persons who are not directors or officers of the Bank may be similarly indemnified in respect of service to the Bank or to another such entity at the request of the Bank to the extent the Board at any
time denominates any of such persons as entitled to indemnification and/ or advancement of expenses. For purposes of this Article VII, the Bank may consider the term “Bank” to include any corporation which has been merged or consolidated into the
Bank or of which the Bank has acquired all or substantially all the assets in a transaction requiring authorization by the shareholders of the corporation whose assets were acquired.
9
SECTION 7.2. Other Indemnification. The foregoing provisions of this Article VII shall apply in respect of all alleged or actual causes of action accrued before, on or after
September 1, 1964, except that, as to any such cause of action which accrued before such date, the Bank may provide, and any person concerned shall be entitled to, indemnification under and pursuant to any statutory provision or principle of common
law in effect prior to such date, all to the extent permitted by law.
SECTION 7.3. Insurance. The Bank may purchase and maintain insurance to indemnify it against payments it is permitted to make under this Article VII and to indemnify directors,
officers and employees against legal or professional expenses incurred in connection with actions or proceedings to the extent permitted by law.
ARTICLE VIII
CAPITAL STOCK
SECTION 8.1. Certificates of Stock. Certificates of stock shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary and may bear the seal
of the Bank. The signatures and the seal may be facsimile to the extent permitted by law. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Bank with the same effect as if he or she were such officer at the date of issue.
SECTION 8.2. Transfer of Certificates. Separate books of transfer shall be kept in which transfers of shares of stock shall be entered by the person entitled to make such
transfer or his or her attorney-in-fact, upon surrender of the certificate for the shares to be transferred properly endorsed by the stockholder, or by his or her assignee, agent or legal representative, who shall furnish proper evidence of
assignment, authority or legal succession, or by the agent of one of the foregoing thereunto duly authorized by an instrument duly executed and filed with the Bank in accordance with regular commercial practice.
SECTION 8.3. New Certificates. No new certificate shall be issued until the former certificate is cancelled except in the circumstances provided in this Section 8.3. The holder
of any shares of the Bank shall immediately notify it of any loss, theft or destruction of any stock certificate representing such shares. New certificates for shares of stock may be issued to replace such certificates upon satisfactory proof of the
loss, theft or destruction and upon such other terms and conditions as the Board, the Chief Executive Officer or any person designated by either of them may from time to time determine.
SECTION 8.4. Holders of Record. The Bank shall be entitled to treat any person in whose name shares of stock of the Bank stand on its books as the holder and owner in fact
thereof for all purposes, and it shall not be bound to recognize any equitable or other claims to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly
provided by law.
10
ARTICLE IX
CORPORATE SEAL
SECTION 9.1. The Seal. The Board shall provide a corporate seal for the Bank which may be affixed to any document, certificate or paper and attested by such individuals as
provided by these By-laws or as the Board may from time-to- time determine.
ARTICLE X
BY-LAWS
SECTION 10.1. Amendments. By-laws of the Bank may be adopted, amended or repealed by vote of the stockholders entitled to vote in any election of directors. By-laws may also be
adopted, amended or repealed by a majority of all the directors then in office. Any By-law adopted by the Board may be amended or repealed by the stockholders entitled to vote thereon as hereinabove provided. If any By-law regulating an impending
election of directors is adopted, amended or repealed by the Board, there shall be set forth in the notice of the next meeting of stockholders for the election of directors the By-law so adopted, amended or repealed, together with a concise statement
of the changes made.
SECTION 10.2. Inspection. A copy of these By-laws, with all amendments thereto, shall at all times be kept in a convenient place at the principal office of the Bank and shall be
open for inspection to all stockholders during regular business hours.
11
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, as amended, The Bank of New York Mellon hereby consents that reports of examinations by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
|
THE BANK OF NEW YORK MELLON
|
||
|
By:
|
/s/ Stacey B. Poindexter
|
|
|
Name:
|
Stacey B. Poindexter
|
|
|
Title:
|
Vice President
|
|
|
New York, New York
|
||
|
January 29, 2026
|
||
12
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30, 2025, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal
Reserve Act.
|
ASSETS
|
Dollar amounts in thousands
|
|||
|
Cash and balances due from depository institutions:
|
||||
|
Noninterest-bearing balances and currency and coin
|
3,883,000
|
|||
|
Interest-bearing balances
|
113,411,000
|
|||
|
Securities:
|
||||
|
Held-to-maturity securities
|
49,539,000
|
|||
|
Available-for-sale debt securities
|
99,736,000
|
|||
|
Equity securities with readily determinable fair values not held for trading
|
0
|
|||
|
Federal funds sold and securities purchased under agreements to resell:
|
||||
|
Federal funds sold in domestic offices
|
0
|
|||
|
Securities purchased under agreements to resell
|
23,061,000
|
|||
|
Loans and lease financing receivables:
|
||||
|
Loans and leases held for sale
|
0
|
|||
|
Loans and leases held for investment
|
37,648,000
|
|||
|
LESS: Allowance for credit losses on loans and leases
|
248,000
|
|||
|
Loans and leases held for investment, net of allowance
|
37,400,000
|
|||
|
Trading assets
|
6,956,000
|
|||
|
Premises and fixed assets (including right-of-use assets)
|
3,208,000
|
|||
|
Other real estate owned
|
0
|
|||
|
Investments in unconsolidated subsidiaries and associated companies
|
2,259,000
|
|||
|
Direct and indirect investments in real estate ventures.
|
0
|
|||
|
Intangible assets.
|
7,375,000
|
|||
|
Other assets
|
19,674,000
|
|||
|
Total assets
|
366,502,000
|
|||
|
LIABILITIES
|
||||
|
Deposits:
|
||||
|
In domestic offices
|
206,711,000
|
|||
|
Noninterest-bearing
|
61,784,000
|
|||
|
Interest-bearing
|
144,927,000
|
|||
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
111,433,000
|
|||
|
Noninterest-bearing
|
6,525,000
|
|||
|
Interest-bearing
|
104,908,000
|
|||
|
Federal funds purchased and securities sold under agreements to repurchase:
|
||||
|
Federal funds purchased in domestic offices.
|
0
|
|||
|
Securities sold under agreements to repurchase
|
2,313,000
|
|||
|
Trading liabilities
|
971,000
|
|||
|
Other borrowed money:
(includes mortgage indebtedness)
|
5,159,000
|
|||
|
Not applicable
|
||||
|
Not applicable
|
||||
|
Subordinated notes and debentures
|
0
|
|||
|
Other liabilities
|
10,656,000
|
|||
|
Total liabilities
|
337,243,000
|
|||
|
EQUITY CAPITAL
|
||||
|
Perpetual preferred stock and related surplus
|
0
|
|||
|
Common stock
|
1,135,000
|
|||
|
Surplus (exclude all surplus related to preferred stock)
|
12,854,000
|
|||
|
Retained earnings
|
17,216,000
|
|||
|
Accumulated other comprehensive income
|
-1,946,000
|
|||
|
Other equity capital components
|
0
|
|||
|
Total bank equity capital
|
29,259,000
|
|||
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
0
|
|||
|
Total equity capital
|
29,259,000
|
|||
|
Total liabilities and equity capital
|
366,502,000
|
|||
13
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and
belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has
been prepared in conformance with the instructions and is true and correct.
|
Robin A. Vince
Jeffrey A. Goldstein
Joseph J. Echevarria
|
Directors
|
14