Horizon Bancorp Inc S-3, filed Sep 23, 2024
Horizon Bancorp Inc (HBNC)
S-3
2024-09-23
View Original
Added on
October 19, 2026
As filed with the Securities and Exchange Commission on September 23, 2024
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HORIZON BANCORP, INC.
(Exact name of Registrant as specified in its charter)
Indiana
(State or other jurisdiction of incorporation or organization)
35-1562417
(I.R.S. Employer Identification Number)
515 Franklin Street
Michigan City, Indiana 46360
(219) 874-0211
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Todd A. Etzler
Senior Vice President, General Counsel
Horizon Bancorp, Inc.
515 Franklin Street
Michigan City, Indiana 46360
(219) 873-2639
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
David P. Hooper, Esq.
Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 231-7707
Facsimile: (317) 231-7433
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.
|
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. ☐
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant files a
further amendment which specifically states that this registration statement is to become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement becomes effective on the date the
Securities and Exchange Commission, acting under Section 8(a), determines.
The information in this prospectus is not complete and may be changed.
These securities may not be sold until the registration statement containing this prospectus filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer
to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated September 23, 2024
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
Rights
Units
Purchase Contracts
Horizon Bancorp, Inc. (“Horizon,” “we,” “us,” “our,” or the “Company”) may offer and sell from time to time, together or separately, in one or more offerings, any combination of
the securities listed above. The securities we may offer may be convertible into or exchangeable for other securities. The maximum aggregate initial public offering price of the securities offered through this prospectus is $250,000,000.
This prospectus describes the general terms that may apply to the securities offered. The specific terms of our securities to be offered will be described in one or more
supplements to this prospectus. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. The prospectus supplement and any related free writing prospectus also may
add, update or change information contained in this prospectus. Before you invest in any of our securities, please carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents
incorporated by reference in this prospectus or any prospectus supplement.
Our common stock is quoted on the NASDAQ Global Select Market under the symbol “HBNC.” Each prospectus supplement will indicate whether the securities offered thereby will be
listed on any securities exchange.
We may offer and sell the securities on a continuous or delayed basis, through agents, dealers or underwriters, or directly to purchasers. The prospectus supplement for each
offering of securities will describe in detail the plan of distribution for that offering. If agents or any dealers or underwriters are involved in the sale of the securities, the applicable prospectus supplement will set forth the names of the
agents, dealers or underwriters and any applicable commissions or discounts. Net proceeds from the sale of securities will be set forth in the applicable prospectus supplement. For general information about the distribution of securities offered,
please see “Plan of Distribution” in this prospectus.
Investing in our securities involves risks. Before making any decision to invest in our securities, you should carefully consider the risk factors beginning on page 3 as well as
those contained or incorporated by reference into this prospectus and in the applicable prospectus supplement or free writing prospectus.
___________________
Neither the Securities and Exchange Commission nor any state securities commission or regulatory body has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The securities are not savings accounts, deposits or obligations of any bank and are not insured by the Federal Deposit Insurance Company or any other
governmental agency.
The date of this Prospectus is ____, 2024
TABLE OF CONTENTS
|
ABOUT THIS PROSPECTUS
|
1
|
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
1
|
|
HORIZON BANCORP, INC.
|
5
|
|
RISK FACTORS
|
6
|
|
USE OF PROCEEDS
|
6
|
|
SECURITIES WE MAY OFFER
|
7
|
|
DESCRIPTION OF COMMON STOCK
|
8
|
|
DESCRIPTION OF PREFERRED STOCK
|
10
|
|
DESCRIPTION OF DEPOSITARY SHARES
|
13
|
|
DESCRIPTION OF DEBT SECURITIES
|
15
|
|
DESCRIPTION OF WARRANTS
|
29
|
|
DESCRIPTION OF RIGHTS
|
30
|
|
DESCRIPTION OF UNITS
|
32
|
|
DESCRIPTION OF PURCHASE CONTRACTS
|
33
|
|
PLAN OF DISTRIBUTION
|
34
|
|
LEGAL MATTERS
|
36
|
|
EXPERTS
|
36
|
|
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
36
|
|
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
36
|
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under
this shelf registration process, we may sell any combination of the securities described in this prospectus as being offered, from time to time in one or more offerings, up to a total dollar amount of $250,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about all of the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to that offering. The applicable prospectus supplement (and
any related free writing prospectus that we may authorize to be provided to you) may also add, update or change information contained in this prospectus or in the documents that we have incorporated by reference. This prospectus does not contain all
of the information set forth in the registration statement and the exhibits to the registration statement. You should read this prospectus and the applicable prospectus supplement and any related free writing prospectus together with additional
information from the sources described in “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus. You should not assume that the information in this prospectus, the prospectus supplements, any
free writing prospectus or any document incorporated by reference is accurate as of any date other than the date of the applicable document.
You should rely only on the information provided or incorporated by reference in this prospectus, any free writing prospectus and any prospectus supplement, if applicable. We
have not authorized anyone to provide you with different information.
References to “we,” “us,” “our,” “Horizon” or the “Company” refer to Horizon Bancorp, Inc. and its subsidiaries, unless the context otherwise requires. The term “you” refers to a
prospective investor.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain of the statements made in this prospectus, including information incorporated in this prospectus by reference to other documents, are “forward-looking statements” within
the meaning and protections of Section 27A of the Securities Act of 1933, as amended (referred to as the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (referred to as the “Exchange Act”). All statements other
than statements of historical fact, including statements regarding our financial position, business strategy and the plans and objectives of our management for future operations, are forward-looking statements. You can identify these forward-looking
statements through our use of words such as “may,” “will,” “anticipate,” “assume,” “should,” “indicate,” “would,” “believe,” “contemplate,” “expect,” “estimate,” “continue,” “plan,” “point to,” “project,” “could,” “intend,” “target,” and other
similar words and expressions relating to the future.
Actual results may differ materially, and adversely or positively, from the expectations of the Company that are expressed or implied by any forward-looking statement. Risks,
uncertainties, and factors that could cause the Company’s actual results to vary materially from those expressed or implied by any forward-looking statement include but are not limited to:
|
•
|
current financial conditions within the banking industry, including the effects of failures of other financial institutions, liquidity levels, and responses by the Federal Reserve,
Department of the Treasury, and the Federal Deposit Insurance Corporation to address these issues;
|
1
|
•
|
changes in accounting standards or policies as may be adopted and required by regulatory agencies;
|
|
•
|
increased and/or continued incidents of social, civil, and political unrest;
|
|
•
|
changes in the level and volatility of interest rates, spreads on earning assets and interest-bearing liabilities, and interest rate sensitivity;
|
|
•
|
the effect of interest rates on net interest rate margin and their impact on mortgage loan volumes and the outflow of deposits;
|
|
•
|
loss of key Horizon personnel;
|
|
•
|
increases in disintermediation, as new technologies allow consumers to complete financial transactions without the assistance of banks;
|
|
•
|
the increasing use of Bitcoin and other crypto currencies and/or stable coin and the possible impact these alternative currencies may have on deposit disintermediation and income derived
from payment systems;
|
|
•
|
loss of fee income, including interchange fees, as new and emerging alternative payment platforms (e.g. Apple Pay or Bitcoin) take a greater market share of the payment systems;
|
|
•
|
estimates of fair value of certain of Horizon’s assets and liabilities;
|
|
•
|
volatility and disruption in financial markets;
|
|
•
|
prepayment speeds, loan originations, credit losses and market values of collateral securing loans and other assets;
|
|
•
|
sources of liquidity;
|
|
•
|
potential risk of environmental liability related to lending and acquisition activities;
|
|
•
|
changes in the competitive environment in Horizon’s market areas and among other financial service providers;
|
|
•
|
legislation and/or regulation affecting the financial services industry as a whole, and Horizon and its subsidiaries in particular, including the effects resulting from the reforms
enacted by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and the adoption of regulations by regulatory bodies under the Dodd-Frank Act;
|
|
•
|
changes in regulatory supervision and oversight, including monetary policy and capital requirements;
|
|
•
|
changes in accounting policies or procedures as may be adopted and required by regulatory agencies;
|
|
•
|
rapid technological developments and changes;
|
2
|
•
|
litigation, regulatory enforcement, and legal compliance risks and costs associated with our business lines in which we operate as a fiduciary, including where we act as ESOP trustee and
in other similar capacities;
|
|
•
|
the effects and costs of governmental investigations or related actions by third parties;
|
|
•
|
the risks presented by cyber terrorism and data security breaches;
|
|
•
|
the rising costs of effective cybersecurity;
|
|
•
|
containing costs and expenses;
|
|
•
|
the ability of the U.S. federal government to manage federal debt limits;
|
|
•
|
the risks of expansion through mergers and acquisitions, including unexpected credit quality problems with acquired loans, difficulty integrating acquired operations and material
differences in the actual financial results of such transactions compared with Horizon’s initial expectations, including the full realization of anticipated cost savings;
|
|
•
|
capital management activities, including possible future sales of new securities, or possible repurchases or redemptions by the Company of outstanding debt or equity securities;
|
|
•
|
factors that may cause the Company to incur impairment charges on its investment securities;
|
|
•
|
claims and litigation liabilities, including related costs, expenses, settlements and judgments, or the outcome of matters before regulatory agencies, whether pending or commencing in the
future;
|
|
•
|
actions of the Board of Governors of the Federal Reserve System;
|
|
•
|
potential increases of federal deposit insurance premium expense, and possible future special assessments of the Federal Deposit Insurance Company, either industry wide or specific to the
Company’s banking subsidiary;
|
|
•
|
the potential for changes in tax laws, particularly corporate income tax reform, that may affect current returns, Horizon’s deferred tax assets and liabilities, the ability to utilize
federal and state net operating loss carryforwards, and the market’s perception on overall value;
|
|
•
|
actions of the regulatory authorities under the Consumer Protection Act, the Consumer Financial Protection Board and the Federal Deposit Insurance Act and other possible legislative and
regulatory actions and reforms;
|
|
•
|
the continued availability of earnings and excess capital sufficient for the lawful and prudent declaration and payment of cash dividends; and
|
|
•
|
other factors and risks described under “Risk Factors” in our most recent Annual Report on Form 10-K, as updated by any of our subsequent reports that we have made or make with the SEC
under the Exchange Act.
|
Because such forward-looking statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such statements. The
foregoing list of important factors
3
is not exclusive and you are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this document or, in the case of documents incorporated by
reference, the dates of those documents. We do not undertake to update any forward-looking statements, whether written or oral, that may be made from time to time by or on behalf of us. For a detailed discussion of the risks and uncertainties that
may cause our actual results or performance to differ materially from the results or performance expressed or implied by forward-looking statements, see “Risk Factors” in our most recent Annual Report on Form 10-K, as updated by our subsequent
filings and in all other information appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement.
4
HORIZON BANCORP, INC.
General
Horizon is a financial holding company incorporated under the laws of the State of Indiana and headquartered in Michigan City, Indiana. Horizon provides a broad range of banking
services in northern and central Indiana and southern and central Michigan through its wholly-owned bank subsidiary, Horizon Bank. Horizon Bank was chartered as a national banking association in 1873, until its conversion to an Indiana commercial
bank effective June 23, 2017, and has operated continuously since 1873. Horizon Bank is a full-service commercial bank offering commercial and retail banking services, corporate and individual trust and wealth management services, and other services
incident to banking.
We maintain 71 full service offices. The main office and full service branch of Horizon and Horizon Bank is located at 515 Franklin Street, Michigan City, Indiana 46360, and our
telephone number at that address is (219) 879-0211. In addition to these principal facilities, we have 70 sales offices and one loan production office located in various cities and towns in northern and central Indiana and southern and central
Michigan.
At June 30, 2024, Horizon Bank had total assets of $7.9 billion and total deposits of $5.6 billion. Our business is not seasonal to any material degree, and no material part of
our business is dependent upon a single or small group of customers, the loss of any one or more of which would have a materially adverse effect on our business.
Our common stock is traded on the NASDAQ Global Select Market under the symbol “HBNC.”
Competition
We face a high degree of competition in all of our primary markets. We compete with other commercial banks, savings and loan associations, consumer finance companies, credit
unions and other non-bank and digital financial service providers. In addition, financial technology, or FinTech, start-ups are emerging in key banking areas. To a more moderate extent, we compete with Chicago money center banks, mortgage banking
companies, insurance companies, brokerage houses, other institutions engaged in money market financial services and certain government agencies. Many non-financial institution competitors face fewer regulatory restrictions and have greater capital
than we do.
Regulation and Supervision
As a bank holding company and a financial holding company, Horizon is subject to extensive regulation, supervision and examination by the Board of Governors of the Federal
Reserve System (the “Federal Reserve Board” or “Federal Reserve”) as its primary federal regulator under the Bank Holding Company Act of 1956, as amended (“BHC Act”). Horizon is required to file annual reports with the Federal Reserve and provide
other information that the Federal Reserve may require. The Federal Reserve may also make examinations and inspections of Horizon.
Horizon Bank, as an Indiana-chartered bank, is subject to extensive regulation, supervision and examination by the Indiana Department of Financial Institutions (“DFI”) as its
primary state regulator. Also, as to certain matters, Horizon Bank is under the supervision of, and subject to examination by, the Federal Deposit Insurance Corporation (“FDIC”) because the FDIC provides deposit insurance to the bank and is the
bank’s primary federal regulator.
5
The supervision, regulation and examination of Horizon and Horizon Bank by the bank regulatory agencies are intended primarily for the protection of depositors rather than for
the benefit of Horizon’s shareholders.
As a publicly traded company and an SEC registrant, Horizon is also subject to the disclosure and regulatory requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, and the rules promulgated thereunder, as administered by the SEC. Horizon’s common stock is listed on the NASDAQ Global Select Market, and therefore, Horizon is also subject to the NASDAQ rules applicable to listed companies.
In addition to the matters discussed above, Horizon Bank is subject to additional regulation of its activities, including a variety of consumer protection regulations affecting
its lending, deposit and debt collection activities and regulations affecting secondary mortgage market activities. Both federal and state law extensively regulate various aspects of the banking business, such as reserve requirements,
truth-in-lending and truth-in-savings disclosures, equal credit opportunity, fair credit reporting, trading in securities and other aspects of banking operations.
Other Available Information
Additional information about us can be found at our website www.horizonbank.com and in our SEC filings. See, “Where You Can Find Additional Information” and “Incorporation of
Certain Documents by Reference” in this prospectus. The information on our website is not incorporated into this prospectus or any accompanying prospectus supplement, and you should not consider it a part of this prospectus or any accompany
prospectus supplement.
RISK FACTORS
Investing in our securities involves risk. You should carefully consider the specific risks set forth below and in “Risk Factors” in the applicable prospectus supplement and any
related free writing prospectus and under the captions “Risk Factors” in any of our filings with the SEC, including the item captioned “Risk Factors” in our most recent Annual Report on Form 10-K, as updated by our subsequent filings and in all other
information appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement. For additional information, please see the sources described in “Where You Can Find More Information.”
These risks are not the only risks we face. Additional risks not presently known to us, or that we currently view as immaterial, may also impair our business, if any of the risks
described in our SEC filings or any prospectus supplement or any additional risks actually occur, our business, financial condition, results of operations and cash flows could be materially and adversely affected. In that case, the value of our
securities could decline substantially and you could lose all or part of your investment.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of the securities offered by this prospectus. Unless otherwise specified in the applicable
prospectus supplement or any related free writing prospectus, we currently expect to use the net proceeds of our sale of securities for general corporate purposes.
General corporate purposes may include, among other purposes, making contributions to the capital of the Bank to support its lending, investing and other financial services
activities; repayments of our debt; repurchases of our common stock; supporting or funding acquisitions of other institutions or branches if opportunities for such transactions become available; and other permitted activities. We may temporarily
6
invest funds that we do not immediately need for these purposes in investment securities or use them to make payments on our borrowings.
SECURITIES WE MAY OFFER
The securities that may be offered from time to time through this prospectus are:
|
•
|
common stock;
|
|
•
|
preferred stock, which we may issue in one or more series;
|
|
•
|
depositary shares representing fractional shares of preferred stock;
|
|
•
|
debt securities, which we may issue in one or more series;
|
|
•
|
warrants entitling the holders to purchase common stock or debt securities;
|
|
•
|
rights to purchase common stock or other securities;
|
|
•
|
units; and
|
|
•
|
purchase contracts for the purchase or sale of our common stock, preferred stock, debt securities or depositary shares.
|
We will describe the terms of particular securities that we may offer in the future in the prospectus supplement we will deliver with this prospectus. This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement. In each prospectus supplement we will include, if relevant and material, the following information:
|
•
|
type and amount of securities which we propose to sell;
|
|
•
|
initial public offering price of the securities;
|
|
•
|
maturity;
|
|
•
|
original issue discount, if any;
|
|
•
|
rates and times of payment of interest, dividends or other payments, if any;
|
|
•
|
redemption, conversion, exercise, exchange, settlement or sinking fund terms, if any;
|
|
•
|
ranking;
|
|
•
|
voting or other rights, if any;
|
|
•
|
conversion, exchange or settlement prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion, exchange or settlement prices or rates and
in the securities or other property receivable upon conversion, exchange or settlement;
|
|
•
|
names of the underwriters, agents or dealers, if any, through or to which we or any selling securityholder will sell the securities;
|
7
|
•
|
compensation, if any, of those underwriters, agents or dealers;
|
|
•
|
details regarding over-allotment options, if any;
|
|
•
|
net proceeds to us;
|
|
•
|
information about any securities exchange or automated quotation system on which the securities will be listed or traded;
|
|
•
|
material United States federal income tax considerations applicable to the securities;
|
|
•
|
any material risk factors associated with the securities; and
|
|
•
|
any other material information about the offer and sale of the securities.
|
In addition, the applicable prospectus supplement and any related free writing prospectus may add, update or change the information contained in this prospectus or in the
documents we have incorporated by reference.
DESCRIPTION OF COMMON STOCK
General
We are authorized by our Amended and Restated Articles of Incorporation, referred to in this prospectus as our Articles of Incorporation, to issue 100,000,000 shares, consisting
of 99,000,000 shares of common stock, without par value per share, and 1,000,000 shares of preferred stock. As of September 23, 2024, 43,712,059 shares of common stock were outstanding and no shares of preferred stock were outstanding.
Our common stock is listed on the NASDAQ Global Select Market. Outstanding shares of our common stock are validly issued, fully paid and non-assessable.
Voting Rights
Holders of our common stock are entitled to one vote for each share that they hold and are vested with all of the voting power, except as may be limited by the Indiana Business
Corporation Law or as our board of directors has provided, or may provide in the future, with respect to preferred stock or any other class or series of preferred stock that the board of directors may authorize in the future. Shares of our common
stock have no cumulative voting rights.
Dividends and Repurchases
Holders of our common stock are entitled to receive such dividends as our board of directors may, in its discretion, legally declare, subject to all statutory restrictions,
including banking law restrictions, discussed elsewhere in this prospectus.
Horizon has no issued and outstanding shares of preferred stock that take preference in dividend distributions over shares of common stock.
8
Rights upon Liquidation or Dissolution
Subject to the preferential rights of any other shares or series of capital stock, if any, if we dissolve, liquidate or wind up our affairs, either voluntarily or involuntarily,
holders of our common stock will be entitled to share ratably in our assets legally available for distribution to those holders after the satisfaction of, or provision for, all of our debts and liabilities.
No Preemptive, Conversion or Redemption Rights
Holders of shares of our common stock do not have preemptive rights to subscribe for any new or additional securities, including shares of common stock, that we may offer or sell
or issue in the future. Holders of shares of common stock have no conversion, exchange or sinking fund rights. Shares of our common stock are not redeemable at our option or at the option of the holders of shares of common stock.
Shareholder Liability
All of our outstanding shares of common stock are fully paid and nonassessable. Under the Indiana Business Corporation Law, shareholders generally are not personally liable for a
corporation’s acts or debts.
Anti-Takeover Provisions
Our Articles of Incorporation and our Amended and Restated Bylaws include provisions that may have the effect of deterring or discouraging an attempt to take control of Horizon.
Among other things, these provisions:
|
•
|
empower our board of directors, without shareholder approval, to issue new preferred shares with terms, including voting power, set by our board;
|
|
•
|
divide our board of directors into three classes serving staggered three-year terms;
|
|
•
|
restrict the ability of shareholders to remove directors;
|
|
•
|
require, in certain circumstances, that certain types of transactions with a related person (generally, a greater-than-ten-percent beneficial owner of our common stock), be approved by
the vote of the holders of at least 70 percent of the outstanding voting shares and a majority of the outstanding shares that are not beneficially owned by the related person (the 70 percent requirement is reduced to two thirds if certain
fair price provisions and other conditions are met), unless the transactions are approved by at least a two-thirds vote of our continuing directors;
|
|
•
|
require, in certain circumstances, that any proposal to repeal or amend certain takeover-related provisions of our Articles of Incorporation be approved by the vote of our shareholders
who hold at least 70 percent of the outstanding voting shares;
|
|
•
|
provide that the board of directors, in determining whether a business combination or tender or exchange offer is in the best interests of Horizon and our shareholders, may consider
non-financial and other factors, including the social and economic effects of the transaction on employees, depositors and other customers and the communities in which we operate;
|
|
•
|
do not provide for cumulative voting in the election of directors;
|
9
|
•
|
entitle our board of directors to redeem shares acquired by a significant shareholder in a “control share acquisition” as defined by Chapter 42 of the Indiana Business Corporation Law,
under certain circumstances; and
|
|
•
|
require advance notice of nominations for the election of directors at meetings of shareholders.
|
The Indiana Business Corporation Law also contains certain provisions applicable or potentially applicable to us that may have the effect of deterring or discouraging an attempt
to take control of Horizon. These provisions, among other things:
|
•
|
authorize an Indiana corporation to adopt a provision known as a “shareholder rights plan” pursuant to which potentially valuable rights to purchase corporate securities may be
distributed following certain unsolicited stock accumulations or takeover attempts only to those shareholders of the corporation who are not affiliated with the acquiring shareholder or bidder;
|
|
•
|
prohibit for five years, subject to certain exceptions, a “business combination” (which includes a merger or consolidation of the corporation or a sale, lease or exchange of assets) with
a person or group beneficially owning 10% or more of a public corporation’s voting power (Horizon is not currently subject to these provisions (contained in Chapter 43 of the Indiana Business Corporation Law) but could elect to be subject
to these provisions in the future); and
|
|
•
|
prevent a person or group acquiring different levels of voting power (20%, 33% and 50%) from voting a number of shares that is in excess of the applicable percentage threshold, unless
“disinterested shareholders” have approved such voting rights.
|
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Shareholder Services, P.O. Box 30170, College Station, Texas 77842-3170.
DESCRIPTION OF PREFERRED STOCK
The complete terms of the preferred stock will be contained in the prospectus supplement and in the applicable certificate of designations that amends our
Articles of Incorporation creating one or more series of preferred stock that may be adopted by our board of directors in the future. You should read the applicable certificate of designations and the prospectus supplement, which will contain
additional information and which may update or modify some of the information below.
General
Our board of directors is authorized to issue up to one million shares of preferred stock, in one or more series, without shareholder approval. Our board of directors has the
discretion to determine the designations, rights, preferences, privileges, qualifications and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges, liquidation preferences and sinking fund terms, of each
series of preferred stock, any or all of which may be greater than the rights of the common stock.
Preferred Stock We May Offer
The terms of any series of preferred stock designated by our board of directors will be set forth in a certificate of designations that will amend our Articles of Incorporation,
and we will include each certificate of designations as an exhibit to the registration statement that includes this prospectus, or as an exhibit to a filing with the SEC that is incorporated by reference into this prospectus. The description of
10
preferred stock in any prospectus supplement will not necessarily describe all of the terms of the preferred stock in detail. You should read the applicable amendment to our Articles of
Incorporation for a complete description of all of the terms. As of the date of this prospectus, none of the authorized preferred stock has been designated by our board of directors for issuance as part of any particular series of preferred stock,
and all of such preferred stock is therefore available for future issuance in the discretion of our board of directors as part of one or more series of preferred stock with terms yet to be determined.
Terms
You should refer to the prospectus supplement relating to the offering of any series of preferred stock for specific terms of the shares, including the following terms:
|
•
|
title and stated or liquidation value;
|
|
•
|
number of shares offered and initial offering price;
|
|
•
|
voting rights and other protective provisions;
|
|
•
|
any dividend rate(s), payment period(s) and/or payment date(s) or method(s) of calculation of any of those terms that apply to those shares;
|
|
•
|
date from which dividends will accumulate, if applicable;
|
|
•
|
terms and amount of a sinking fund, if any, for purchase or redemption;
|
|
•
|
redemption rights, including conditions and the redemption price(s), if applicable;
|
|
•
|
listing on any securities exchange;
|
|
•
|
terms and conditions, upon which shares will be convertible into common stock or any other securities, including the conversion price, rate or other manner of calculation, conversion
period and anti-dilution provisions, if applicable;
|
|
•
|
terms and conditions upon which shares will be exchangeable into debt securities or any other securities, including the exchange price, rate or other manner of calculation, exchange
period and any anti-dilution provisions, if applicable;
|
|
•
|
the relative ranking and preference as to dividend rights and rights upon liquidation, dissolution or the winding up of our affairs, including liquidation preference amount;
|
|
•
|
any limitation on issuance of any series of preferred stock ranking senior to or on a parity with that series of preferred stock as to dividend rights and rights upon liquidation,
dissolution or the winding up of our affairs;
|
|
•
|
any other specific terms, preferences, rights, privileges, limitations or restrictions; and
|
|
•
|
a discussion of applicable material U.S. federal income tax consequences.
|
11
Ranking
Unless we provide otherwise in a prospectus supplement, the preferred stock offered through that supplement will, with respect to dividend rights and rights upon our liquidation,
dissolution or winding up, rank:
|
•
|
senior to all classes or series of our common stock, and to all other equity securities ranking junior to the offered preferred stock;
|
|
•
|
on a parity with all of our equity securities ranking on a parity with the offered preferred stock; and
|
|
•
|
junior to all of our equity securities ranking senior to the offered preferred stock.
|
The term “equity securities” does not include convertible debt securities.
Voting Rights
Unless otherwise indicated in the applicable prospectus supplement, holders of our preferred stock will not have any voting rights, except as may be required by applicable law.
Dividends
Subject to any preferential rights of any outstanding shares or series of shares, our preferred shareholders are entitled to receive dividends, when and as authorized by our
board of directors, out of legally available funds, as specified in the applicable prospectus supplement.
Redemption
If we provide for a redemption right in a prospectus supplement, the preferred stock offered through that supplement will be subject to mandatory redemption or redemption at our
option, in whole or in part, in each case upon the terms, at the times and at the redemption prices set forth in that prospectus supplement.
Liquidation Preference
In the event of our voluntary or involuntary dissolution, liquidation, or winding up, the holders of any series of our preferred stock will be entitled to receive, after
distributions to holders of any series or class of our capital shares ranking senior, an amount equal to the stated or liquidation value of the series plus, if applicable, an amount equal to accrued and unpaid dividends. If the assets and funds to be
distributed among the holders of our preferred stock will be insufficient to permit full payment to the holders, then the holders of our preferred stock will share ratably in any distribution of our assets in proportion to the amounts that they
otherwise would receive on their preferred stock if the shares were paid in full.
Conversion Rights
The terms and conditions, if any, upon which any series of preferred stock is convertible into common stock or other securities will be set forth in the prospectus supplement
relating to the offering of those preferred stock. These terms typically will include number of common stock or other securities into which the preferred stock is convertible; conversion price (or manner of calculation); conversion period; provisions
as to whether conversion will be at the option of the holders of the preferred stock or at our option; events, if any, requiring an adjustment of the conversion price; and provisions affecting conversion in the event of the redemption of that series
of preferred stock.
12
Transfer Agent and Registrar
We will identify in a prospectus supplement the transfer agent and registrar for any series of preferred stock offered by this prospectus.
DESCRIPTION OF DEPOSITARY SHARES
The complete terms of the depositary shares will be contained in the depositary agreement and depositary receipt applicable to any depositary shares. These
documents have been or will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the depositary agreement and the depositary receipt. You should also read the
prospectus supplement, which will contain additional information and which may update or change some of the information below.
General
We may offer fractional preferred stock, rather than full preferred stock, and may issue receipts for depositary shares that each represents a fraction of a share of a particular
series of preferred stock. The prospectus supplement will indicate that fraction. The preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a bank or trust company selected by us that meets
certain requirements, which we refer to as the “bank depositary.” Each owner of a depositary share will be entitled to the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by
depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to persons purchasing the fractional preferred stock in accordance with the offering.
The following summary description of certain common provisions of a depositary agreement and the related depositary receipts and any summary description of the depositary
agreement and depositary receipts in the applicable prospectus supplement do not purport to be complete and are qualified in their entirety by reference to all of the provisions of such depositary agreement and depositary receipts. The forms of the
depositary agreement and the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC each time we issue depositary shares, and you should read those documents for provisions that may be important to you.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the bank depositary will distribute such dividends to the record
holders of such depositary shares. If the distributions are in property other than cash, the bank depositary will distribute the property to the record holders of the depositary shares. However, if the bank depositary determines that it is not
feasible to make the distribution of property, the bank depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the bank depositary will redeem the depositary shares from the proceeds received by the bank depositary
in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to
be redeemed will be selected by lot or pro rata as the bank depositary may determine.
13
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the bank depositary will mail the notice
to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the bank
depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The bank depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance
with such instructions, and we will take all action that the bank depositary deems necessary in order to enable the bank depositary to do so. The bank depositary will abstain from voting the preferred stock to the extent it does not receive specific
instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
Unless otherwise provided in the applicable prospectus supplement or required by law, the form of depositary receipt evidencing the depositary shares and any provision of the
depositary agreement may be amended by agreement between the bank depositary and us. The depositary agreement may be terminated by the bank depositary or us only if:
|
•
|
all outstanding depositary shares have been redeemed, or
|
|
•
|
there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company, and such distribution has been
distributed to the holders of depositary receipts.
|
Charges of Bank Depositary
We will pay charges of the bank depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. We will pay all transfer and
other taxes and governmental charges arising solely from the existence of the depositary arrangements. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the
withdrawal of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement for their accounts.
Withdrawal of Preferred Stock
Except as may be provided otherwise in the applicable prospectus supplement, upon surrender of depositary receipts at the principal office of the bank depositary, subject to the
terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial preferred stock will
not be issued. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the bank depositary will
deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary
receipts evidencing depositary shares therefor.
Miscellaneous
The bank depositary will forward to holders of depositary receipts reports and communications from us that are delivered to the bank depositary and that we are required to
furnish to the holders of the
14
preferred stock. Neither the bank depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing obligations under the depositary
agreement. The obligations of the bank depositary and us thereunder will be limited to performance in good faith of our respective duties, and we will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons
believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The bank depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the bank depositary. Any such resignation or removal
will take effect upon the appointment of a successor bank depositary and its acceptance of such appointment. The successor bank depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or
trust company meeting the requirements of the depositary agreement.
DESCRIPTION OF DEBT SECURITIES
The complete terms of the debt securities will be contained in the indenture and indenture supplement applicable to the debt securities. These documents
have been or will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the indenture and indenture supplement in their entirety. You should also read the prospectus
supplement, which will contain additional information and which may update or change some of the information below.
General
We may issue senior or subordinated debt securities, which will be direct, general obligations of Horizon that may be secured or unsecured.
The senior debt securities will constitute part of our senior debt, will be issued under the senior debt indenture described below and will rank equally in payment with all of
our other senior and unsubordinated debt, whether secured or unsecured.
The subordinated debt securities will constitute part of our subordinated debt, will be issued under the subordinated indenture described below and will be subordinate in right
of payment to all of our “senior debt,” as defined in the indenture with respect to subordinated debt securities. The prospectus supplement for any series of subordinated debt securities or the information incorporated in this prospectus by reference
will indicate the approximate amount of senior debt outstanding as of the end of our most recent fiscal quarter. Neither indenture limits our ability to incur additional senior debt, additional subordinated debt or other indebtedness.
When we refer to “debt securities” in this prospectus, we mean both the senior debt securities and the subordinated debt securities.
The senior debt securities and subordinated debt securities will be governed by an indenture between us and one or more trustees selected by us. The indentures will be substantially identical, except
for certain provisions including those relating to subordination, which are included only in the indenture related to subordinated debt securities. When we refer to the indenture or the trustee with respect to any debt securities, we mean the
indenture under which those debt securities are issued and the trustee under that indenture.
15
Series of Debt Securities
We may issue multiple debt securities or series of debt securities under either indenture. This section summarizes terms of the securities that apply generally to all debt securities and series of
debt securities. The provisions of each indenture allow us not only to issue debt securities with terms different from those of debt securities previously issued under that indenture, but also to “reopen” a previously issued series of debt securities
and issue additional debt securities of that series. We will describe most of the financial and other specific terms of a particular series, whether it be a series of the senior debt securities or subordinated debt securities, in the prospectus
supplement applicable for that series. Those terms may vary from the terms described here.
Amounts of Issuances
The indentures do not limit the amount of debt securities that may be issued under them. We may issue the debt securities from time to time in one or more series. We are not required to issue all of
the debt securities of one series at the same time and, unless otherwise provided in the applicable indenture or prospectus supplement, we may reopen a series and issue additional debt securities of that series without the consent of the holders of
the outstanding debt securities of that series.
Principal Amount, Stated Maturity and Maturity
Unless otherwise stated, the principal amount of a debt security means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount
of a debt security is its face amount.
The term “stated maturity” with respect to any debt security means the day on which the principal amount of the debt security is scheduled to become due. The principal may become due sooner, by
reason of redemption or acceleration after a default or otherwise in accordance with the terms of the debt security. The day on which the principal actually becomes due, whether at the stated maturity or earlier, is called the “maturity” of the
principal.
We also use the terms “stated maturity” and “maturity” to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of
interest is scheduled to become due as the “stated maturity” of that installment. When we refer to the “stated maturity” or the “maturity” of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the
case may be, of the principal.
Specific Terms of Debt Securities
The applicable prospectus supplement will describe the specific terms of the debt securities, which will include some or all of the following:
|
•
|
the title of the series and whether it is a senior debt security or a subordinated debt security;
|
|
•
|
any limit on the total principal amount of the debt securities of the same series;
|
|
•
|
the stated maturity;
|
|
•
|
the currency or currencies for principal and interest, if not U.S. dollars;
|
16
|
•
|
the price at which we originally issue the debt security, expressed as a percentage of the principal amount, and the original issue date;
|
|
•
|
whether the debt security is a fixed rate debt security, a floating rate debt security or an indexed debt security;
|
|
•
|
if the debt security is a fixed rate debt security, the yearly rate at which the debt security will bear interest, if any, and the interest payment dates;
|
|
•
|
if the debt security is a floating rate debt security, the interest rate basis; any applicable index currency or index maturity, spread or spread multiplier or initial base rate, maximum rate or minimum rate;
the interest reset, determination, calculation and payment dates; the day count convention used to calculate interest payments for any period; the business day convention; and the calculation agent;
|
|
•
|
if the debt security is an indexed debt security, the principal amount, if any, we will pay at maturity, interest payment dates, the amount of interest, if any, we will pay on an interest payment date or the
formula we will use to calculate these amounts, if any, and the terms on which the debt security will be exchangeable for or payable in cash, securities or other property;
|
|
•
|
if the debt security may be converted into or exercised or exchanged for common or preferred stock or other securities of the Company or debt or equity securities of one or more third parties, the terms on
which conversion, exercise or exchange may occur, including whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option, the period during which conversion, exercise or exchange may occur, the initial
conversion, exercise or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion, exercise or exchange may be adjusted;
|
|
•
|
if the debt security is also an original issue discount debt security, the yield to maturity;
|
|
•
|
if applicable, the circumstances under which the debt security may be redeemed at our option or repaid at the holder’s option before the stated maturity, including any redemption commencement date, repayment
date(s), redemption price(s) and redemption period(s);
|
|
•
|
the authorized denominations, if other than $1,000 and integral multiples of $1,000;
|
|
•
|
the depositary for the debt security, if other than The Depository Trust Company (“DTC”), and any circumstances under which the holder may request securities in non-global form, if we choose not to issue the
debt security in book-entry form only;
|
|
•
|
if applicable, the circumstances under which we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes and under which we can redeem the debt
securities if we have to pay additional amounts;
|
|
•
|
whether the debt security will be guaranteed by any of our subsidiaries;
|
|
•
|
the assets, if any, that will be pledged as security for the payment of the debt security;
|
|
•
|
the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for the debt security, as applicable; and
|
17
|
•
|
any other terms of the debt security which could be different from those described in this prospectus.
|
Governing Law
The indentures and the debt securities will be governed by the laws of the State of New York, without regard to conflicts of laws principles thereof.
Form of Debt Securities
We will issue each debt security only in registered form, without coupons, unless we specify otherwise in the applicable prospectus supplement. In addition, we will issue each debt security in
global—i.e., book-entry—form only, unless we specify otherwise in the applicable prospectus supplement. Debt securities in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of
all the debt securities represented by the global security. Those who own beneficial interests in a global debt security will do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be
governed solely by the applicable procedures of the depositary and its participants. References to “holders” in this section mean those who own debt securities registered in their own names, on the books that we or the trustee maintain for this
purpose, and not those who own beneficial interests in debt securities registered in street name or in debt securities issued in book-entry form through one or more depositaries.
Unless otherwise indicated in the relevant prospectus supplement, the following is a summary of the depositary arrangements applicable to debt securities issued in global form
and for which DTC acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC, as depositary, or its nominee, and registered in the name of a nominee of DTC. Except under the limited
circumstances described below, global debt securities are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to institutions that have accounts with DTC or its nominee, or persons that may hold interests through
those participants. In addition, ownership of beneficial interests by participants in a global debt security will be evidenced only by, and the transfer of that ownership interest will be effected only through, records maintained by DTC or its
nominee for a global debt security. Ownership of beneficial interests in a global debt security by persons that hold those interests through participants will be evidenced only by, and the transfer of that ownership interest within that participant
will be effected only through, records maintained by that participant. DTC has no knowledge of the actual beneficial owners of the debt securities. Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial
owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial owners entered the transaction. The laws of some
jurisdictions require that certain purchasers of securities take physical delivery of securities they purchase in definitive form. These laws may impair a holder’s ability to transfer beneficial interests in a global debt security.
We will make payment of principal of, and interest on, debt securities represented by a global debt security registered in the name of or held by DTC or its nominee to DTC or
its nominee, as the case may be, as the registered owner and holder of the global debt security representing those debt securities. DTC has advised us that upon receipt of any payment of principal of, or interest on, a global debt security, DTC
immediately will credit accounts of participants on its book-entry registration and transfer system with payments in amounts proportionate to their respective interests in the principal amount of that global debt security, as shown in the records
of DTC. Payments by participants to owners of beneficial interests in a
18
global debt security held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in
bearer form or registered in “street name,” and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements that may be in effect from time to time.
Neither we, any trustee nor any of our respective agents will be responsible for any aspect of the records of DTC, any nominee or any participant relating to, or payments made
on account of, beneficial interests in a permanent global debt security or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial interests.
A global debt security is exchangeable for definitive debt securities registered in the name of, and a transfer of a global debt security may be registered to, any person other than DTC or its
nominee, only if:
|
•
|
DTC notifies us that it is unwilling or unable to continue as depositary for that global security or has ceased to be a registered clearing agency and we do not appoint another institution to act as
depositary within 90 days; or
|
|
•
|
we notify the trustee that we wish to terminate that global security.
|
Any global debt security that is exchangeable pursuant to the preceding sentence will be exchangeable in whole for definitive debt securities in registered form, of like tenor and of an equal
aggregate principal amount as the global debt security, in denominations specified in the applicable prospectus supplement, if other than $1,000 and multiples of $1,000. The definitive debt securities will be registered by the registrar in the name
or names instructed by DTC. We expect that these instructions may be based upon directions received by DTC from its participants with respect to ownership of beneficial interests in the global debt security.
Except as provided above, owners of the beneficial interests in a global debt security will not be entitled to receive physical delivery of debt securities in definitive form and will not be
considered the holders of debt securities for any purpose under the indentures. No global debt security shall be exchangeable except for another global debt security of like denomination and tenor to be registered in the name of DTC or its nominee.
Accordingly, each person owning a beneficial interest in a global debt security must rely on the procedures of DTC and, if that person is not a participant, on the procedures of the participant through which that person owns its interest, to exercise
any rights of a holder under the global debt security or the indentures.
We understand that, under existing industry practices, in the event that we request any action of holders, or an owner of a beneficial interest in a global debt security desires to give or take any
action that a holder is entitled to give or take under the debt securities or the indentures, DTC would authorize the participants holding the relevant beneficial interests to give or take that action. Additionally, those participants would authorize
beneficial owners owning through those participants to give or take that action or would otherwise act upon the instructions of beneficial owners owning through them.
DTC has advised us as follows:
|
•
|
DTC is:
|
|
o
|
a limited-purpose trust company organized under the New York Banking Law,
|
|
o
|
a “banking organization” within the meaning of the New York Banking Law,
|
|
o
|
a member of the Federal Reserve System,
|
19
|
o
|
a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and
|
|
o
|
a “clearing agency” registered pursuant to Section 17A of the Exchange Act;
|
|
•
|
DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in those securities through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates;
|
|
•
|
DTC’s participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom own DTC;
|
|
•
|
Access to DTC’s book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly
or indirectly. Persons who are not participants may beneficially own securities held by DTC only through participants or indirect participants.
|
The information in this prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for its accuracy or
completeness. We assume no responsibility for the performance by DTC or its participants of their respective obligations, including obligations that they have under the rules and procedures that govern their operations.
Redemption or Repayment
If there are any provisions regarding redemption or repayment applicable to a debt security, we will describe them in the applicable indenture and prospectus supplement.
We or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated
prices. Debt securities that we or they purchase may, at our discretion, be held, resold or cancelled.
Mergers and Similar Transactions
We are generally permitted under the indenture for the relevant series to merge or consolidate with another corporation or other entity. We are also permitted under the indenture for the relevant
series to sell all or substantially all of our assets to another corporation or other entity. With regard to any series of debt securities, however, we may not take any of the foregoing actions unless all the following conditions, among others, are
met.
|
•
|
If the successor entity in the transaction is not the Company, the successor entity must expressly assume our obligations under the debt securities of that series and the indenture with respect to that
series. The successor entity must be organized and existing under the laws of the United States, any State thereof or the District of Columbia.
|
|
•
|
Immediately after the transaction, no default under the debt securities of that series has occurred and is continuing. For this purpose, “default under the debt securities of that series” means an event of
default with respect to that series or any event that would be an event of default with respect to that series if the requirements for giving us default notice and for our default having to continue for a specific period of time were
disregarded. We describe these matters below under “– Default, Remedies and Waiver of Default.”
|
20
If the conditions described above are satisfied with respect to the debt securities of any series, we will not need to obtain the approval of the holders of those debt securities in order to merge or
consolidate or to sell our assets. Also, these conditions will apply only if we wish to merge or consolidate with another entity or sell all or substantially all of our assets to another entity. We will not need to satisfy these conditions if we
enter into other types of transactions, including any transaction in which we acquire the stock or assets of another entity, any transaction that involves a change of control of the Company but in which we do not merge or consolidate and any
transaction in which we sell less than substantially all our assets.
If we engage in any of the above-described transactions and comply with the applicable conditions related thereto, we will be released from all our liabilities and obligations under the debt
securities of any series subject to any such transaction and the indenture with respect to that series.
Subordination Provisions
Holders of subordinated debt securities should recognize that contractual provisions in the subordinated indenture may prohibit us from making payments on those securities. Subordinated debt
securities are subordinate and junior in right of payment, to the extent and in the manner stated in the subordinated indenture, to all of our senior debt, as defined in the subordinated indenture, including all debt securities we have issued and
will issue under the senior debt indenture.
The subordinated indenture defines “senior debt” as any indebtedness permitted under the terms of that indenture, unless the instrument under which such indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the subordinated debt securities.
Notwithstanding the foregoing, “senior debt” will not include: (i) equity interests; (ii) any liability for taxes; (iii) any trade payables; (iv) any indebtedness owed to any of our subsidiaries or
affiliates; or (v) any indebtedness incurred in violation of the subordinated indenture.
We may modify the above-described subordination provisions, including the definition of senior debt, with respect to one or more series of subordinated debt securities. Such modifications will be set
forth in the applicable prospectus supplement.
The subordinated indenture provides that, unless all principal of and any premium or interest on the senior debt has been paid in full, no payment or other distribution may be made in respect of any
subordinated debt securities in the following circumstances:
|
•
|
in the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization, assignment for creditors or other similar proceedings or events involving us or our assets;
|
|
•
|
(a) in the event and during the continuation of any default in the payment of principal, premium or interest on any senior debt beyond any applicable grace period or (b) in the event that any event of default
with respect to any senior debt has occurred and is continuing, permitting the holders of that senior debt (or a trustee) to accelerate the maturity of that senior debt, whether or not the maturity is in fact accelerated (unless, in the
case of (a) or (b), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded) or (c) in the event that any judicial proceeding is pending with respect to a payment
default or event of default described in (a) or (b); or
|
21
|
•
|
in the event that any subordinated debt securities have been declared due and payable before their stated maturity.
|
If the trustee under the subordinated indenture or any holders of the subordinated debt securities receive any payment or distribution that is prohibited under the subordination provisions, then the
trustee or the holders will have to repay that money to the holders of the senior debt.
Even if the subordination provisions prevent us from making any payment when due on the subordinated debt securities of any series, we will be in default on our obligations under that series if we do
not make the payment when due. This means that the trustee under the subordinated indenture and the holders of that series can take action against us, but they will not receive any money until the claims of the holders of senior debt have been fully
satisfied.
Defeasance, Covenant Defeasance and Satisfaction and Discharge
When we use the term defeasance, we mean discharge from some or all of our obligations under the indenture. If we deposit with the trustee funds or government securities (or a combination thereof),
or if so provided in the applicable indenture or prospectus supplement, obligations other than government securities, sufficient to make payments on any series of debt securities on the dates those payments are due and payable and other specified
conditions are satisfied, then, at our option, either of the following will occur:
|
•
|
we will be discharged from our obligations with respect to the debt securities of such series (“legal defeasance”); or
|
|
•
|
we will be discharged from any covenants we make in the applicable indenture for the benefit of such series and the related events of default will no longer apply to us (“covenant defeasance”).
|
If we defease any series of debt securities, the holders of such securities will not be entitled to the benefits of the indenture, except for certain continuing obligations, including our obligations
to register the transfer or exchange of such securities, replace stolen, lost or mutilated securities or maintain paying agencies and hold moneys for payment in trust. In case of covenant defeasance, our obligation to pay principal, premium and
interest on the applicable series of debt securities will also survive.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the applicable series of debt securities to recognize gain
or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
In addition, we may satisfy and discharge all our obligations under the indenture with respect to debt securities of any series, other than our obligation to register the transfer of and exchange
debt securities of that series, provided that we either:
|
•
|
deliver all outstanding debt securities of that series to the trustee for cancellation; or
|
|
•
|
all such debt securities not so delivered for cancellation have either become due and payable (by reason of the making of a notice of redemption or otherwise) or will become due and payable at their stated
maturity within one year or are to be called for redemption within one year, and in either such case, we have deposited with the trustee in trust an amount of cash
|
22
sufficient to pay the entire indebtedness of such debt securities, including interest to the stated maturity or applicable redemption date.
Default, Remedies and Waiver of Default
Unless otherwise specified in the applicable prospectus supplement, when we refer to an event of default with respect to any series of debt securities, we mean any of the following:
|
•
|
we do not pay the principal, premium or sinking fund payment, if any, on any debt security of that series when due at its stated maturity, upon optional redemption, upon required purchase, upon declaration of
acceleration or otherwise and the time for payment has not been extended or deferred;
|
|
•
|
we do not pay interest on any debt security of that series within 30 days after the due date and the time for payment has not been extended or deferred;
|
|
•
|
we fail to comply for 90 days after notice with the other agreements and covenants contained in the indenture, which notice must be sent by the trustee or the holders of at least 30% in principal amount of
the relevant series of debt securities;
|
|
•
|
we file for bankruptcy or other events of bankruptcy, insolvency or reorganization relating to us occur; or
|
|
•
|
if the applicable prospectus supplement states that any additional event of default applies to the series, that event of default occurs.
|
We may change, eliminate, or add to the events of default with respect to any particular series or any particular debt security or debt securities within a series, as indicated in the applicable
prospectus supplement.
If you are the holder of a subordinated debt security, all the remedies available upon the occurrence of an event of default under the subordinated indenture will be subject to the restrictions on
the subordinated debt securities described above under “– Subordination Provisions.”
Except as otherwise specified in the applicable prospectus supplement, if an event of default has occurred with respect to any series of debt securities and has not been cured or waived, the trustee
or the holders of not less than 30% in principal amount of all debt securities of that series then outstanding may declare the entire principal amount of the debt securities of that series to be due immediately. Except as otherwise specified in the
applicable prospectus supplement, if the event of default occurs because of events in bankruptcy, insolvency or reorganization relating to us, the entire principal amount of the debt securities of that series will be automatically accelerated,
without any action by the trustee or any holder.
Each of the situations described above may result in an acceleration of the stated maturity of the affected series of debt securities. Except as otherwise specified in the applicable prospectus
supplement, if the stated maturity of any series is accelerated and a judgment for payment has not yet been obtained, the holders of a majority in principal amount of the debt securities of that series may cancel the acceleration for the entire
series.
If an event of default occurs, the trustee will have special duties. In that situation, the trustee will be obligated to use those of its rights and powers under the relevant indenture, and to use
the same degree
23
of care and skill in doing so, that a prudent person would use in that situation in conducting his or her own affairs.
Except as described in the prior paragraph, the trustee is not required to take any action under the relevant indenture at the request of any holders unless the holders offer the trustee protection
satisfactory to it from loss, liability or expense. These holders may also direct the trustee in performing any other action under the relevant indenture with respect to the debt securities of that series.
Except as otherwise specified in the applicable prospectus supplement, before a holder may take steps to enforce its rights or protect its interests relating to any debt security, all of the
following must occur:
|
•
|
the holder must give the trustee written notice that an event of default has occurred with respect to the debt securities of the series, and the event of default must not have been cured or waived;
|
|
•
|
the holders of at least 30% in principal amount of all debt securities of the series must request that the trustee take action because of the default, and they or other holders must offer to the trustee
indemnity reasonably satisfactory to the trustee against the cost and other liabilities of taking that action;
|
|
•
|
the trustee must not have taken action for 60 days after the above steps have been taken; and
|
|
•
|
during those 60 days, the holders of a majority in principal amount of the debt securities of the series must not have given the trustee directions that are inconsistent with such request.
|
Book-entry and other indirect owners should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an
acceleration of the maturity.
Except as otherwise specified in the applicable prospectus supplement, the holders of a majority in principal amount of the debt securities of any series may by notice to the trustee waive an
existing default and its consequences for all debt securities of that series except (i) a default in the payment of the principal of or any premium or interest on a debt security, or (ii) a default in respect of a provision that under the indenture
cannot be amended without the consent of each securityholder affected. If a waiver occurs, the default is deemed cured, but no such waiver shall extend to any subsequent or other default or impair any consequent right.
We will furnish each trustee every year a certificate indicating whether the signer(s) thereof know of any default that occurred in the previous year.
Modifications and Waivers
Changes Requiring Each Holder’s Approval. Except as otherwise specified in the applicable prospectus supplement, we and the trustee may
amend the indentures or the debt securities with the written consent of the holders of at least a majority in principal amount of the debt securities then outstanding. However, without the consent of each securityholder affected thereby, an amendment
or waiver may not, except as otherwise specified in the applicable prospectus supplement with respect to one or more series of debt securities:
|
•
|
reduce the amount of debt securities whose holders must consent to an amendment;
|
|
•
|
reduce the rate of, or extend the time for payment of, the interest on any debt security;
|
24
|
•
|
reduce the principal of or change the stated maturity on any debt security;
|
|
•
|
permit redemption of a debt security if not previously permitted;
|
|
•
|
change the place of payment or the currency of any payment on a debt security;
|
|
•
|
impair the right of any holder of a debt security to institute suit for the enforcement of any payment on or with respect to such holder’s debt security;
|
|
•
|
change the amendment provisions which require each holder’s consent or change the waiver provisions in a manner adverse to the holders of the debt securities affected thereby; or
|
|
•
|
change the ranking or priority of any debt security that would adversely affect the securityholders.
|
Changes Not Requiring Approval. We and the trustee may amend the indentures or the debt securities without notice to or consent of any
securityholder:
|
•
|
to cure any ambiguity or omission, to correct or supplement any provision therein which may be defective or inconsistent with any other provision therein, or to make any other provisions with respect to
matters or questions arising under the indenture;
|
|
•
|
to evidence the succession of another person to the Company and the assumption by any such successor of the covenants of the Company in the indenture and the debt securities, as the case may be;
|
|
•
|
to add to the covenants of the Company for the benefit of the holders of all or any debt securities of any series or to surrender any right or power therein conferred upon the Company with
regard to all or any debt securities of any series;
|
|
•
|
to add any additional events of default for the benefit of the holders of all or any debt securities of any series;
|
|
•
|
to add to or change any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the issuance of the debt securities in definitive form, or to permit
or facilitate the issuance of debt securities in uncertificated form;
|
|
•
|
to add to, change or eliminate any of the provisions of the indenture in respect of all or any debt securities of any series, provided that any such addition, change or elimination (i) shall
neither (a) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (b) modify the rights of the holder of any such debt security with respect
to such provision, or (ii) shall become effective only when there is no such debt security outstanding;
|
|
•
|
to secure the debt securities or add any person as a guarantor of such securities;
|
|
•
|
to establish the form or terms of all or any debt securities of any series;
|
|
•
|
to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the debt securities of one or more series and to add to or change any of the
|
25
provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one trustees;
|
•
|
to add to or change any of the provisions of the indenture with respect to any debt securities that by their terms may be converted into securities or other property other than debt
securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such debt securities;
|
|
•
|
to comply with any SEC requirement in connection with the qualification of the indenture under the Trust Indenture Act;
|
|
•
|
to make any amendment to the provisions of the indenture relating to the transfer and legending of the debt securities; provided, however, that (i)
compliance with the indenture as so amended would not result in the debt securities being transferred in violation of the Securities Act or any other applicable securities law, and (ii) such amendment does not materially and adversely
affect the rights of holders to transfer the debt securities; or
|
|
•
|
to make any other change to the indenture that does not adversely affect the interests of the holders of debt securities of any series in any material respect.
|
Modification of Subordination Provisions. We may not amend the indenture related to subordinated debt securities to alter the subordination
of any outstanding subordinated debt securities without the written consent of each holder of senior debt then outstanding who would be adversely affected (or the group or representative thereof authorized or required to consent thereto pursuant to
the instrument creating or evidencing, or pursuant to which there is outstanding, such senior debt).
Book-entry and other indirect owners should consult their banks or brokers for information on how approval may be granted or denied if we seek to change an indenture or any debt securities or request
a waiver.
Changes Requiring Majority Approval. Any other change to a particular indenture and the debt securities issued under that indenture would
require the following approval:
|
•
|
if the change affects only particular debt securities within a series issued under the applicable indenture, it must be approved by the holders of a majority in principal amount of such particular debt
securities; or
|
|
•
|
if the change affects debt securities of more than one series issued under the applicable indenture, it must be approved by the holders of a majority in principal amount of all debt securities of all such
series affected by the change, with all such affected debt securities voting together as one class for this purpose and such affected debt securities of any series potentially comprising fewer than all debt securities of such series, in
each case, except as may otherwise be provided pursuant to such indenture for all or any particular debt securities of any series. This means that modification of terms with respect to certain securities of a series could be effectuated
without obtaining the consent of the holders of a majority in principal amount of other securities of such series that are not affected by such modification.
|
The same majority approval would be required for us to obtain a waiver of any of our covenants in an indenture. If the holders approve a waiver of a covenant, we will not have to comply with it. The holders, however,
cannot approve a waiver of any provision in a particular debt security, or in the applicable indenture as it affects that debt security, that we cannot change without the approval of the holder of that
26
debt security as described above in “– Changes Requiring Each Holder’s Approval,” unless that holder approves the waiver.
Special Rules for Action by Holders
Only holders of outstanding debt securities of the applicable series will be eligible to take any action under the applicable indenture, such as giving a notice of default, declaring an acceleration,
approving any change or waiver or giving the trustee an instruction with respect to debt securities of that series. Also, we will count only outstanding debt securities in determining whether the various percentage requirements for taking action have
been met. Any debt securities owned by us or any of our affiliates or surrendered for cancellation or for payment or redemption of which money has been set aside in trust are not deemed to be outstanding. Any required approval or waiver must be given
by written consent.
In some situations, we may follow special rules in calculating the principal amount of debt securities that are to be treated as outstanding for the purposes described above. This may happen, for
example, if the principal amount is payable in a non-U.S. dollar currency, increases over time or is not to be fixed until maturity.
We will generally be entitled to set any day as a record date for the purpose of determining the holders that are entitled to take action under either indenture. In certain limited circumstances,
only the trustee will be entitled to set a record date for action by holders. If we or the trustee sets a record date for an approval or other action to be taken by holders, that vote or action may be taken only by persons or entities who are holders
on the record date and must be taken during the period that we specify for this purpose, or that the trustee specifies if it sets the record date. We or the trustee, as applicable, may shorten or lengthen this period from time to time. This period,
however, may not extend beyond the 180th day after the record date for the action. In addition, record dates for any global debt security may be set in accordance with procedures established by the depositary from time to time. Accordingly, record
dates for global debt securities may differ from those for other debt securities.
Form, Exchange and Transfer
If a debt security is issued as a global debt security, only DTC or other depositary will be entitled to transfer and exchange the debt security as described in this subsection, since the depositary
will be the sole holder of the debt security.
If any debt securities cease to be issued in registered global form, they will be issued only in fully registered form, without interest coupons and, unless we indicate otherwise in the applicable
prospectus supplement, in denominations of $1,000 and integral multiples of $1,000.
Holders may exchange their debt securities for debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not
changed. Holders may not exchange debt securities for securities of a different series or having different terms, unless permitted by the terms of that series and described in the applicable prospectus supplement.
Holders may exchange or transfer their debt securities at the office of the trustee. They may also replace lost, stolen, destroyed or mutilated debt securities at that office. We have appointed the
trustee to act as our agent for registering debt securities in the names of holders and transferring and replacing debt securities. We may appoint another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange their debt securities, but they may be required to pay for any tax or other governmental charge associated with the
exchange or
27
transfer. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may require an indemnity or bond before
replacing any debt securities.
If we have designated additional transfer agents for a debt security, they will be named in the applicable prospectus supplement. We may appoint additional transfer agents or cancel the appointment
of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities of any series are redeemable, we may block the transfer or exchange of those debt securities completely or during the period beginning 15 days before the day we mail the notice
of redemption and ending on the day of that mailing (or during such other period as specified in any prospectus supplement), in order to freeze the list of holders to prepare the mailing, except that we will continue to permit transfers and exchanges
of the unredeemed portion of any debt security being partially redeemed.
The rules for exchange described above apply to exchange of debt securities for other debt securities of the same series and kind. If a debt security is convertible, exercisable or exchangeable into
or for a different kind of security, such as one that we have not issued, or for other property, the rules governing that type of conversion, exercise or exchange will be described in the applicable prospectus supplement.
Payments
We will pay interest, principal and other amounts payable with respect to the debt securities of any series to the holders of record of those debt securities as of the record dates and otherwise in
the manner specified below or in the prospectus supplement for that series.
We will make payments on a global debt security in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we will pay directly to the
depositary, or its nominee, and not to any indirect owners who own beneficial interests in the global debt security. An indirect owner’s right to receive those payments will be governed by the rules and practices of the depositary and its
participants.
We will make payments on a debt security in non-global, registered form as follows. We will pay interest that is due on an interest payment date by check mailed on the interest payment date to the
holder at his or her address shown on the trustee’s records as of the close of business on the regular record date. We will make all other payments by check at the paying agent described below, against surrender of the debt security. All payments by
check will be made in next-day funds—i.e., funds that become available on the day after the check is cashed.
Book-entry and other indirect owners should consult their banks or brokers for information on how they will receive payments on their debt securities.
Regardless of who acts as paying agent, all money paid by us to a paying agent that remains unclaimed at the end of two years after the amount is due to a holder will be repaid to us. After that
two-year period, the holder may look only to us for payment and not to the trustee, any other paying agent or anyone else.
Paying Agents
We may appoint one or more financial institutions to act as our paying agents, at whose designated offices debt securities in non-global entry form may be surrendered for payment at their maturity.
We call
28
each of those offices a paying agent. We may add, replace or terminate paying agents from time to time. We may also choose to act as our own paying agent. We will specify in the applicable prospectus supplement for
each debt security the initial location of each paying agent for that debt security. We must notify the trustee of changes in the paying agents.
Notices
Notices to be given to holders of a global debt security will be given only to the depositary in accordance with its applicable policies as in effect from time to time. Notices to be given to holders
of debt securities not in global form will be sent by mail to the respective addresses of the holders as they appear in the trustee’s records, and will be deemed given when mailed. Neither the failure to give any notice to a particular holder, nor
any defect in a notice given to a particular holder, will affect the sufficiency of any notice given to another holder.
Book-entry and other indirect owners should consult their banks or brokers for information on how they will receive notices.
Our Relationship With the Trustee
The prospectus supplement for any debt security will describe any material relationships we may have with the trustee with respect to that debt security.
The same financial institution may initially serve as the trustee for our senior debt securities and subordinated debt securities. Consequently, if an actual or potential event
of default occurs with respect to any of these securities, the trustee may be considered to have a conflicting interest for purposes of the Trust Indenture Act. In that case, the trustee may be required to resign under one or more of the indentures
and we would be required to appoint a successor trustee. For this purpose, a “potential” event of default means an event that would be an event of default if the requirements for giving us default notice or for the default having to exist for a
specific period of time were disregarded.
DESCRIPTION OF WARRANTS
The complete terms of the warrants will be contained in the applicable warrant agreement and warrant. These documents will be included or incorporated by
reference as exhibits to the registration statement of which this prospectus is a part. You should read the warrant and warrant agreement. You should also read the prospectus supplement, which will contain additional information and which may update
or change some of the information below.
We may issue warrants for the purchase of common stock, preferred stock, depositary shares and/or debt securities in one or more series. If we offer warrants, we will describe
the terms in a prospectus supplement (and any free writing prospectus). Warrants may be offered independently, together with other securities offered by any prospectus supplement, or through a dividend or other distribution to shareholders and may be
attached to or separate from other securities. Warrants may be issued under a written warrant agreement to be entered into between us and the holder or beneficial owner, or under a written warrant agreement with a warrant agent specified in a
prospectus supplement. A warrant agent would act solely as our agent in connection with the warrants of a particular series and would not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of those
warrants.
The following are some of the terms relating to a series of warrants that could be described in a prospectus supplement:
29
|
•
|
title of the warrants;
|
|
•
|
aggregate number of warrants;
|
|
•
|
price or prices at which the warrants will be issued;
|
|
•
|
designation, number, aggregate principal amount, denominations and terms of the securities that may be purchased on exercise of the warrants;
|
|
•
|
date, if any, on and after which the warrants and the debt securities offered with the warrants, if any, will be separately transferable;
|
|
•
|
purchase price for each security purchasable on exercise of the warrants;
|
|
•
|
dates on which the right to purchase certain securities upon exercise of the warrants will begin and end;
|
|
•
|
minimum or maximum number of securities that may be purchased at any one time upon exercise of the warrants;
|
|
•
|
anti-dilution provisions or other adjustments to the exercise price of the warrants;
|
|
•
|
terms of any right that we may have to redeem the warrants;
|
|
•
|
effect of any merger, consolidation, sale or other transfer of our business on the warrants and the applicable warrant agreement;
|
|
•
|
name and address of the warrant agent, if any;
|
|
•
|
information with respect to book-entry procedures;
|
|
•
|
a discussion of material U.S. federal income tax considerations; and
|
|
•
|
other material terms, including terms relating to transferability, exchange, exercise or amendments of the warrants.
|
Until any warrants to purchase our securities are exercised, holders of the warrants will not have any rights of holders of the underlying securities.
DESCRIPTION OF RIGHTS
The complete terms of the rights will be contained in the rights agreements we enter into with rights agents. These documents will be included or
incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the rights agreements and any related documents. You also should read the prospectus supplement, which will contain additional
information and which may update or change some of the information below.
This section describes the general terms of the rights to purchase common stock or other securities that we may offer to shareholders using this prospectus. Further terms of the
rights will be stated in the applicable prospectus supplement. The following description and any description of the rights in a
30
prospectus supplement may not be complete and is subject to and qualified in its entirety by reference to the terms of any agreement relating to the rights.
Rights may be issued independently or together with any other security and may or may not be transferable. As part of any rights offering, we may enter into a standby
underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such rights offering. If we issue rights, each series of rights will be issued under a separate rights
agreement to be entered into between us and a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. Further terms of the rights will be stated in the applicable prospectus supplement. The rights agent
will act solely as our agent and will not assume any obligation to any holders of rights certificates or beneficial owners of rights. The rights agreements and rights certificates will be filed with the SEC as an exhibit to the registration statement
of which this prospectus is a part or as an exhibit to a filing incorporated by reference in the registration statement. See “Where You Can Find Additional Information” for information on how to obtain copies of the rights agreements and rights
certificates.
The prospectus supplement relating to any rights we offer will describe the specific terms of the offering and the rights, including the record date for shareholders entitled to
the rights distribution, the number of rights issued and the number of shares of common stock or other securities that may be purchased upon exercise of the rights, the exercise price of the rights, the date on which the rights will become effective
and the date on which the rights will expire, and any applicable U.S. federal income tax considerations.
In general, a right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are
normally issued to shareholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue rights, we will accompany this prospectus with a
prospectus supplement that will describe, among other things:
|
•
|
the record date for shareholders entitled to receive the rights;
|
|
•
|
the number of shares of common stock or other securities that may be purchased upon exercise of each right;
|
|
•
|
the exercise price of the rights;
|
|
•
|
whether the rights are transferable;
|
|
•
|
the period during which the rights may be exercised and when they will expire;
|
|
•
|
the steps required to exercise the rights;
|
|
•
|
whether the rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments;
|
|
•
|
whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby”
commitment or other arrangement;
|
|
•
|
our ability to withdraw or terminate the rights offering; and
|
|
•
|
any material U.S. Federal income tax consequences.
|
31
If fewer than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights
will become void.
Prior to the exercise of a holder’s rights, the holder will not have any of the rights of holders of the securities issuable upon the exercise of the rights and will not be
entitled to, among other things, vote or receive dividend payments or other distributions on the securities purchasable upon exercise.
DESCRIPTION OF UNITS
The complete terms of the units will be contained in the unit agreement and any related document applicable to any units. These documents will be included
or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the unit agreement and any related documents. You also should read the prospectus supplement, which will contain additional
information and which may update or change some of the information below.
We may issue units, in one or more series, consisting of any combination of one or more of the other securities described in this prospectus. If we offer units, we will describe
the terms in a prospectus supplement (and any free writing prospectus). Units may be issued under a written unit agreement to be entered into between us and the holder or beneficial owner, or we could issue units under a written unit agreement with a
unit agent specified in a prospectus supplement. A unit agent would act solely as our agent in connection with the units of a particular series and would not assume any obligation or relationship of agency or trust for or with any holders or
beneficial owners of those units.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security.
The following are some of the unit terms that could be described in a prospectus supplement:
|
•
|
title of the units;
|
|
•
|
aggregate number of units;
|
|
•
|
price or prices at which the units will be issued;
|
|
•
|
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
|
|
•
|
effect of any merger, consolidation, sale or other transfer of our business on the units and the applicable unit agreement;
|
|
•
|
name and address of the unit agent;
|
|
•
|
information with respect to book-entry procedures;
|
|
•
|
a discussion of material U.S. federal income tax considerations; and
|
|
•
|
other material terms, including terms relating to transferability, exchange, exercise or amendments of the units.
|
32
The provisions described in this section, as well as those described under “Description of Common Stock,” “Description of Preferred Stock,” “Description of Debt Securities,”
“Description of Warrants,” “Description of Rights” and “Description of Purchase Contracts” will apply to each unit and to any common stock, preferred stock, debt security, warrant, right or purchase contract included in each unit, respectively.
Unless otherwise provided in the applicable prospectus supplement, the unit agreements will be governed by the laws of the State of Indiana. The unit agreement under which a unit
is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. We will file as an exhibit to a filing with the SEC that is incorporated by reference into
this prospectus the forms of the unit agreements containing the terms of the units being offered. The description of units in any prospectus supplement will not necessarily describe all of the terms of the units in detail. You should read the
applicable unit agreements for a complete description of all of the terms.
DESCRIPTION OF PURCHASE CONTRACTS
The complete terms of the purchase contracts will be contained in the contract documents and any related applicable document. These documents will be
included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the purchase contracts and any related document. You should also read the prospectus supplement, which will contain
additional information and which may update or change some of the information below.
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more other securities, for the purchase or sale of our common stock, preferred
stock, debt securities or depositary shares. The price of our securities that may be the subject of our purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula contained in
the purchase contracts. We may issue purchase contracts in such amounts and in as many distinct series as we wish.
The applicable prospectus supplement may contain, where applicable, the following information about the purchase contracts issued under it:
|
•
|
whether the purchase contracts obligate the holder to purchase or sell, or both purchase and sell, our common stock, preferred stock, debt securities or depositary shares, as applicable,
and the nature and amount of each of those securities, or method of determining those amounts;
|
|
•
|
whether the purchase contracts are to be prepaid or not;
|
|
•
|
whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock or preferred stock;
|
|
•
|
any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;
|
|
•
|
United States federal income tax considerations relevant to the purchase contracts; and
|
|
•
|
whether the purchase contracts will be issued in fully registered global form.
|
The applicable prospectus supplement will describe the terms of any purchase contracts. The preceding description and any description of purchase contracts in the applicable
prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the purchase
33
contract agreement and, if applicable, collateral arrangements and depositary arrangements relating to such purchase contracts.
PLAN OF DISTRIBUTION
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; or
|
|
•
|
through a combination of any of these methods.
|
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 in a prospectus supplement, including:
|
•
|
the terms of the offering;
|
|
•
|
the names of the underwriters, dealers, agents or direct purchasers and their compensation;
|
|
•
|
the purchase price of the securities and the net proceeds we will receive from the sale;
|
|
•
|
any delayed delivery obligations to take the securities;
|
|
•
|
the nature of the underwriters’ obligations to take the securities;
|
|
•
|
any securities exchange or market on which the securities may be listed; and
|
|
•
|
other facts material to the transaction.
|
Underwriters, Dealers and Agents
If we use underwriters in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each underwriter and the terms of the
transaction (including any underwriting discounts and other terms constituting compensation of the underwriters and any dealers) in a prospectus supplement. If we use an underwriting syndicate, the managing underwriter(s) will be specified on the
cover of the prospectus supplement. If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own accounts. The underwriters may resell the securities from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to
time. Unless otherwise set forth in
34
the prospectus supplement, the obligations of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated to purchase all of
the offered securities if any are purchased.
If agents are used in an offering, the names of the agents and the terms of the agency will be specified in a prospectus supplement. Unless otherwise indicated in a prospectus
supplement, the agents will act on a best-efforts basis for the period of their appointment.
If dealers are used in an offering, we may sell the securities to the dealers as principals. The dealers then may resell the securities to the public at varying prices which they
determine at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
Dealers and agents named in a prospectus supplement may be underwriters as defined in the Securities Act of 1933 and any discounts or commissions they receive from us and any
profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act of 1933. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their
compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act of 1933.
Underwriters, dealers or agents and their associates may engage in other transactions with and perform other services for us in the ordinary course of business.
If so indicated in a prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by institutional investors to purchase
securities pursuant to contracts providing for payment and delivery on a future date. We may enter contracts with commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and
other institutional investors. The obligations of any institutional investor will be subject to the condition that its purchase of the offered securities will not be illegal at the time of delivery. The underwriters and other agents will not be
responsible for the validity or performance of contracts.
Direct Sales
We may sell securities directly to one or more purchasers without using underwriters or agents
At-the-Market Offerings
We may also sell the securities offered by any applicable prospectus supplement in “at-the-market offerings” within the meaning of Rule 415 of the Securities Act of 1933, to or
through a market maker or into an existing trading market, on an exchange or otherwise.
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our
common shares, which are listed on NASDAQ Global Select Market. We may elect to list any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class
or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
35
Stabilization Activities
In connection with an offering, an underwriter may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and
purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater
than the underwriters’ option to purchase additional securities, if any, from us in the offering. If the underwriters have an over-allotment option to purchase additional securities from us, the underwriters may close out any covered short position
by either exercising their over-allotment option or purchasing securities in the open market. In determining the source of securities to close out the covered short position, the underwriters may consider, among other things, the price of securities
available for purchase in the open market as compared to the price at which they may purchase securities through the over-allotment option. “Naked” short sales are any sales in excess of such option or where the underwriters do not have an
over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on
the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon for us by Barnes & Thornburg LLP,
Indianapolis, Indiana.
EXPERTS
Our consolidated financial statements as of December 31, 2023 and 2022, and for each of the years in the three-year period ended December 31, 2023, and management’s assessment of
the effectiveness of internal control over financial reporting as of December 31, 2023, included in our Annual Report on Form 10-K for the year ended December 31, 2023, have been incorporated by reference herein and in the registration statement in
reliance upon the reports of Forvis Mazars, LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the SEC which can be accessed by the public on the SEC’s website www.sec.gov.
We also make available free of charge through our website our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statement on
Schedule 14A and all amendments to those reports as soon as reasonably practicable after such material is electronically filed with or furnished to the SEC. Information about us can be found on the Internet at www.horizonbank.com. Please note that
our website address is provided as inactive textual reference only. Information contained on or accessible through our website is not part of this prospectus or the prospectus supplement, and is therefore not incorporated by reference unless such
information is otherwise specifically referenced elsewhere in this prospectus or the prospectus supplement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” certain information that we file with the SEC into this prospectus. By incorporating by reference, we can disclose important
information to you by referring you to another document we have filed separately with the SEC. The information incorporated by reference
36
is deemed to be part of this prospectus, except for information incorporated by reference that is superseded by information contained in this prospectus or any document we subsequently file with
the SEC that is incorporated or deemed to be incorporated by reference into this prospectus. Likewise, any statement in this prospectus or any document which is incorporated or deemed to be incorporated by reference herein will be deemed to have been
modified or superseded to the extent that any statement contained in any document that we subsequently file with the SEC that is incorporated or deemed to be incorporated by reference herein modifies or supersedes that statement. This prospectus
incorporates by reference the documents listed below; however, we are not incorporating by reference in this prospectus any material that we “furnished” and did not “file” with the SEC.
|
•
|
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023;
|
|
•
|
Our Quarterly Report on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024;
|
|
•
|
Our Current Reports on Form 8-K filed on January 16, January 23, May 3, May 13, June 24, July 17, and September 18, 2024; and
|
|
•
|
The description of our common stock in the Registration Statement on Amendment No. 1 to Form 8-A filed with the SEC on January 6, 2021, including any amendment or report filed for the
purpose of updating that description.
|
We are also incorporating by reference additional documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of the
initial registration statement that contains this prospectus (including prior to the effectiveness of the registration statement) and prior to the sale of all the securities covered by this prospectus. Any statement contained in a document that is
incorporated by reference will be deemed to be modified or superseded for all purposes to the extent that a statement contained in this document (or in any other document that is subsequently filed with the SEC and incorporated by reference) modifies
or is contrary to that previous statement. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K that we may from time to time
furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus.
These documents may be obtained as explained above (see “Where You Can Find Additional Information”), or you may request a free copy of any or all of these documents, including
exhibits that are specifically incorporated by reference into these documents, by writing to or calling us at the following address or telephone number or via the Internet at:
Horizon Bancorp, Inc.
515 Franklin Street
Michigan City, Indiana 46360
Attn: Shareholder Relations
(219) 879-0211
Website: www.horizonbank.com
You should rely only on the information in our prospectus, any applicable prospectus supplement, any related free writing prospectus and the documents that are
incorporated by reference. We have not authorized anyone else to provide you with different information. We are not offering these securities in any state where the offer is prohibited by law. You should not assume that the information in this
prospectus, any applicable prospectus supplement, any related free writing prospectus or any incorporated document is accurate as of any date other than the date of the document.
37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred, or expected to be incurred, by the Registrant in connection with the registration and issuance of the securities being
registered hereunder. As indicated below, all amounts shown are estimates except for the SEC registration fee.
|
SEC Registration Fee
|
|
$
|
36,900
|
*
|
|
Printing Expenses
|
|
$
|
**
|
|
|
Accounting Fees and Expenses
|
|
$
|
**
|
|
|
Legal Fees and Expenses
|
|
$
|
**
|
|
|
Rating Agency Fees and Expenses
|
|
$
|
**
|
|
|
Transfer Agent Fees and Expenses
|
|
$
|
**
|
|
|
Trustee Fees and Expenses
|
|
$
|
**
|
|
|
Miscellaneous
|
|
$
|
**
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
**
|
| * |
See the Filing Fee Table attached as Exhibit 107 to this registration statement.
|
| ** |
Fees and expenses (other than the SEC Registration Fee to be paid upon filing of this registration statement) will depend on the securities offered, the number of issuances and the nature of offerings, and cannot be estimated at this time.
|
Item 15. Indemnification of Directors and Officers.
Horizon Bancorp, Inc. is an Indiana corporation. Horizon’s officers and directors (and those who have agreed to such positions) are entitled to be indemnified under Indiana law
and our Articles of Incorporation against certain liabilities and expenses. Chapter 37 of The Indiana Business Company Law (the “IBCL”) requires a corporation, unless its articles of incorporation provide otherwise, to indemnify a director or an
officer of the corporation who is wholly successful, on the merits or otherwise, in the defense of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or
informal, against reasonable expenses, including counsel fees, incurred in connection with the proceeding. The IBCL also permits a corporation to indemnify a director or an officer who is made a party to a proceeding because the individual was a
director or an officer of the corporation against liability incurred in the proceeding if the individual’s conduct was in good faith and the individual reasonably believed, in the case of conduct in the individual’s official capacity with the
corporation, that the conduct was in the corporation’s best interests, and in all other cases, that the individual’s conduct was at least not opposed to the corporation’s best interests. In a criminal proceeding, the individual must also either have
had reasonable cause to believe the individual’s conduct was lawful or no reasonable cause to believe the individual’s conduct was unlawful. The IBCL also permits a corporation to pay for or reimburse reasonable expenses incurred before the final
disposition of a proceeding and permits a court of competent jurisdiction to order a corporation to indemnify a director or officer if the court determines that the person is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the person met the standards for indemnification otherwise provided in the IBCL.
Horizon’s Articles of Incorporation provide for mandatory indemnification of officers and directors (and those who have agreed to such positions) if they are wholly successful on
the merits of a proceeding and satisfy the standards of conduct specified by the IBCL set forth in the preceding paragraph. The Articles
of Incorporation also provide that any director or officer of Horizon or any person who is serving at the request of Horizon as a director or officer of another entity shall be indemnified and held
harmless by Horizon to the same extent as Horizon’s directors and officers. In any proceeding, an officer or director is entitled to be indemnified against all liabilities and expenses related to the proceeding including attorneys’ fees, judgments,
fines, penalties and amounts paid or to be paid in settlement. Horizon’s Articles of Incorporation also provide such persons with certain rights to be paid or reimbursed for expenses incurred in defending any such proceeding in advance of the final
disposition. The Articles of Incorporation also provide that Horizon has the discretion to indemnify employees and agents to the same extent, and on the same basis, as it is required to indemnify its officers and directors.
The Articles of Incorporation also authorize Horizon to maintain insurance to protect itself and any director, officer, employee or agent of Horizon against expense, liability or
loss, whether or not Horizon would have the power to indemnify such person against such expense, liability or loss under the IBCL or pursuant to its Articles of Incorporation. Horizon currently maintains such insurance.
Any underwriting agreement that we might enter into (Exhibit 1.1) will provide for indemnification by any underwriters of us, our directors, our officers who sign the
registration statement and our controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits.
|
Number
|
|
Description
|
|
1.1
|
|
Form of Underwriting Agreement*
|
|
4.1
|
|
Amended and Restated Articles of Incorporation of Horizon Bancorp, Inc. (incorporated by reference to Exhibit 3.1 of Horizon’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on May 16, 2018).
|
|
4.2
|
|
Amended and Restated Bylaws of Horizon Bancorp, Inc. (incorporated by reference to Exhibit 3.2 of Horizon’s Current Report on Form 8-K filed with the Securities and Exchange Commission on
December 20, 2022).
|
|
4.3
|
|
Specimen certificate for shares of the Registrant’s common stock (incorporated by reference to Exhibit 4.1 of Horizon’s Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on January 27, 2012).
|
|
4.4
|
|
Form of Certificate of Designations Creating New Series of Preferred Stock*
|
|
4.5
|
|
Specimen Certificate for Preferred Stock*
|
|
4.6
|
|
Form of Senior Debt Security*
|
|
4.7
|
|
Form of Subordinated Debt Security*
|
|
4.8
|
|
Form of Depositary Agreement and Depositary Receipt*
|
|
|
Form of Senior Indenture**
|
|
|
Form of Subordinated Indenture**
|
||
|
4.11
|
|
Form of Warrant*
|
|
4.12
|
Form of Rights Agreement*
|
|
|
4.13
|
|
Form of Unit Agreement*
|
|
4.14
|
|
Form of Purchase Contract*
|
|
|
Opinion of Barnes & Thornburg LLP as to the validity of the securities registered hereunder.**
|
|
|
|
Consent of Forvis Mazars, LLP (formerly FORVIS, LLP)**
|
|
|
|
Consent of Barnes & Thornburg LLP (included in Exhibit 5.1)**
|
|
|
|
Limited Power of Attorney**
|
|
|
25.1
|
Form T-1 Statement of Eligibility of Trustee under the Senior Indenture+
|
|
|
25.2
|
Form T-1 Statement of Eligibility of Trustee under the Subordinated Indenture+
|
|
|
Filing Fee Table**
|
| * |
If applicable, to be filed by an amendment to this registration statement or by a Current Report on Form 8-K and incorporated by reference herein.
|
| ** |
Filed herewith.
|
| + |
To be filed separately under the electronic form type “305B2” pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, if applicable.
|
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its
securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(7) That, insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(8) To file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Michigan City, State of Indiana, on this 23rd day of September, 2024.
|
HORIZON BANCORP, INC.
|
||
|
By:
|
/s/ Thomas M. Prame | |
|
Thomas M. Prame
|
||
|
Chief Executive Officer
|
||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the
date indicated.
|
SIGNATURE
|
TITLE(S)
|
DATE
|
||
| /s/ Thomas M. Prame |
Chief Executive Officer (Principal Executive Officer)
|
September 23, 2024
|
||
|
Thomas M. Prame
|
||||
| /s/ John R. Stewart |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
|
September 23, 2024
|
||
|
John R. Stewart
|
||||
| /s/ Craig M. Dwight |
Chairman of the Board of Directors
|
September 23, 2024
|
||
|
Craig M. Dwight
|
||||
| /s/ Kevin W. Ahern |
Director
|
September 23, 2024
|
||
|
Kevin W. Ahern
|
||||
| /s/ Eric P. Blackhurst |
Director
|
September 23, 2024
|
||
|
Eric P. Blackhurst
|
||||
| /s/ Lawrence E. Burnell |
Director
|
September 23, 2024
|
||
|
Lawrence E. Burnell
|
||||
| /s/ James B. Dworkin |
Director
|
September 23, 2024
|
||
|
James B. Dworkin
|
||||
| /s/ Julie Scheck Freigang |
Director
|
September 23, 2024
|
||
|
Julie Scheck Freigang
|
||||
| /s/ Brian W. Maass |
Director
|
September 23, 2024
|
||
|
Brian W. Maass
|
||||
| /s/ Michele M. Magnuson |
Director
|
September 23, 2024
|
||
|
Michele M. Magnuson
|
||||
| /s/ Steven W. Reed |
Director
|
September 23, 2024
|
||
|
Steven W. Reed
|
||||
| /s/ Vanessa P. Williams |
Director
|
September 23, 2024
|
||
|
Vanessa P. Williams
|
Exhibit 4.9
Horizon Bancorp, Inc.
as Issuer
and
[Trustee]
as Trustee
Senior Indenture
Dated as of _______________, 202__
Horizon Bancorp, Inc.
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939
inclusive, of the Trust Indenture Act of 1939
|
Trust Indenture Act Section
|
Indenture Section
|
|
Section 3.10(a)(1)
|
6.9
|
|
(a)(2)
|
6.9
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(b)
|
6.8
|
|
Section 3.11(a)
|
6.13
|
|
(b)
|
6.13
|
|
Section 3.12(a)
|
7.1, 7.2
|
|
(b)
|
7.2
|
|
(c)
|
7.2
|
|
Section 3.13(a)
|
7.3, 13.1
|
|
(b)
|
7.3, 13.1
|
|
(c)
|
7.3
|
|
(d)
|
7.3
|
|
Section 3.14(a)
|
7.4
|
|
(a)(4)
|
1.1
|
|
(b)
|
14.1
|
|
(c)
|
14.1
|
|
(c)(1)
|
1.2, 13.1
|
|
(c)(2)
|
1.2
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
13.1
|
|
(e)
|
1.2
|
|
Section 3.15(a)
|
6.1
|
|
(b)
|
6.2
|
|
(c)
|
6.1
|
|
(d)
|
6.1
|
|
(e)
|
5.13
|
|
Section 3.16(a)
|
1.1
|
|
(a)(1)(A)
|
5.2, 5.11
|
|
(a)(1)(B)
|
5.12
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
Not Applicable
|
|
(c)
|
1.4
|
|
Section 3.17(a)(1)
|
5.3
|
|
(a)(2)
|
5.4
|
|
(b)
|
10.3
|
|
Section 3.18(a)
|
1.7
|
|
__________________________________
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Table of Contents
|
Page
|
|
|
Article 1. Definitions and Other Provisions of General Application
|
1
|
|
Section 1.1 Definitions
|
1
|
|
Section 1.2 Compliance Certificates and Opinions
|
6
|
|
Section 1.3 Form of Documents Delivered to Trustee
|
7
|
|
Section 1.4 Acts of Holders; Record Dates
|
7
|
|
Section 1.5 Notices, Etc., to Trustee and Company
|
9
|
|
Section 1.6 Notice to Holders; Waiver
|
10
|
|
Section 1.7 Conflict with Trust Indenture Act
|
10
|
|
Section 1.8 Effect of Headings and Table of Contents
|
10
|
|
Section 1.9 Successors and Assigns
|
10
|
|
Section 1.10 Separability Clause
|
10
|
|
Section 1.11 Benefits of Indenture
|
10
|
|
Section 1.12 Governing Law
|
11
|
|
Section 1.13 Legal Holidays
|
11
|
|
Section 1.14 No Adverse Interpretation of Other Agreements
|
11
|
|
Section 1.15 No Personal Liability of Directors, Officers, Employees and Stockholders
|
11
|
|
Section 1.16 Language of Notices, Etc
|
11
|
|
Section 1.17 Force Majeure
|
11
|
|
Section 1.18 Waiver of Jury Trial
|
11
|
|
Section 1.19 U.S.A. Patriot Act
|
11
|
|
Article 2. Security Forms
|
12
|
|
Section 2.1 Forms Generally
|
12
|
|
Section 2.2 Form of Trustee’s Certificate of Authentication
|
12
|
|
Article 3. The Securities
|
12
|
|
Section 3.1 Amount Unlimited; Issuable in Series
|
12
|
|
Section 3.2 Denominations
|
15
|
|
Section 3.3 Execution, Authentication, Delivery and Dating
|
15
|
|
Section 3.4 Temporary Securities
|
16
|
|
Section 3.5 Registration, Registration of Transfer and Exchange
|
17
|
|
Section 3.6 Mutilated, Destroyed, Lost and Wrongfully Taken Securities
|
19
|
|
Section 3.7 Payment of Interest; Interest Rights Preserved
|
19
|
|
Section 3.8 Persons Deemed Owners
|
21
|
i
|
Section 3.9 Cancellation
|
21
|
|
Section 3.10 Computation of Interest
|
21
|
|
Section 3.11 CUSIP Numbers
|
21
|
|
Article 4. Satisfaction and Discharge
|
21
|
|
Section 4.1 Satisfaction and Discharge of Indenture
|
21
|
|
Section 4.2 Application of Trust Money
|
23
|
|
Article 5. Remedies
|
23
|
|
Section 5.1 Events of Default
|
23
|
|
Section 5.2 Acceleration of Maturity; Rescission and Annulment
|
24
|
|
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee
|
25
|
|
Section 5.4 Trustee May File Proofs of Claim
|
26
|
|
Section 5.5 Trustee May Enforce Claims without Possession of Securities
|
26
|
|
Section 5.6 Application of Money Collected
|
26
|
|
Section 5.7 Limitation on Suits
|
26
|
|
Section 5.8 Restoration of Rights and Remedies
|
27
|
|
Section 5.9 Rights and Remedies Cumulative
|
27
|
|
Section 5.10 Delay or Omission Not Waiver
|
27
|
|
Section 5.11 Control by Holders
|
27
|
|
Section 5.12 Waiver of Past Defaults
|
28
|
|
Section 5.13 Undertaking for Costs
|
28
|
|
Section 5.14 Waiver of Usury, Stay or Extension Laws
|
28
|
|
Article 6. The Trustee
|
28
|
|
Section 6.1 Certain Duties and Responsibilities
|
29
|
|
Section 6.2 Notice of Defaults
|
30
|
|
Section 6.3 Certain Rights of Trustee
|
30
|
|
Section 6.4 Not Responsible for Recitals or Issuance of Securities
|
31
|
|
Section 6.5 May Hold Securities
|
31
|
|
Section 6.6 Money Held in Trust
|
31
|
|
Section 6.7 Compensation and Reimbursement
|
31
|
|
Section 6.8 Conflicting Interests
|
32
|
|
Section 6.9 Corporate Trustee Required; Eligibility
|
32
|
|
Section 6.10 Resignation and Removal; Appointment of Successor
|
32
|
|
Section 6.11 Acceptance of Appointment by Successor
|
34
|
|
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
|
35
|
|
Section 6.13 Preferential Collection of Claims Against Company
|
35
|
ii
|
Section 6.14 Appointment of Authenticating Agent
|
35
|
|
Article 7. Holders’ Lists and Reports by Trustee and Company
|
36
|
|
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders
|
36
|
|
Section 7.2 Preservation of Information; Communications to Holders
|
36
|
|
Section 7.3 Reports by Trustee
|
37
|
|
Section 7.4 Reports by Company
|
37
|
|
Article 8. Consolidation, Merger, Conveyance, Transfer or Lease
|
37
|
|
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms
|
37
|
|
Section 8.2 Successor Substituted
|
38
|
|
Article 9. Supplemental Indentures
|
38
|
|
Section 9.1 Supplemental Indentures without Consent of Holders
|
38
|
|
Section 9.2 Supplemental Indentures with Consent of Holders
|
40
|
|
Section 9.3 Execution of Supplemental Indentures
|
41
|
|
Section 9.4 Effect of Supplemental Indentures
|
41
|
|
Section 9.5 Conformity with Trust Indenture Act
|
41
|
|
Section 9.6 Reference in Securities to Supplemental Indentures
|
41
|
|
Article 10. Covenants
|
42
|
|
Section 10.1 Payment of Principal, Premium and Interest
|
42
|
|
Section 10.2 Maintenance of Office or Agency
|
42
|
|
Section 10.3 Money for Securities Payments to Be Held in Trust
|
42
|
|
Section 10.4 Corporate Existence
|
43
|
|
Section 10.5 Statement by Officers as to Default
|
43
|
|
Section 10.6 Waiver of Certain Covenants
|
43
|
|
Article 11. Redemption of Securities
|
44
|
|
Section 11.1 Applicability of Article
|
44
|
|
Section 11.2 Election to Redeem; Notice to Trustee
|
44
|
|
Section 11.3 Selection by Trustee of Securities to Be Redeemed
|
44
|
|
Section 11.4 Notice of Redemption
|
45
|
|
Section 11.5 Deposit of Redemption Price
|
46
|
|
Section 11.6 Securities Payable on Redemption Date
|
46
|
|
Section 11.7 Securities Redeemed in Part
|
46
|
|
Article 12. Defeasance and Covenant Defeasance
|
46
|
|
Section 12.1 Company’s Option to Effect Defeasance or Covenant Defeasance
|
46
|
|
Section 12.2 Defeasance and Discharge
|
47
|
|
Section 12.3 Covenant Defeasance
|
47
|
iii
|
Section 12.4 Conditions to Defeasance or Covenant Defeasance
|
47
|
|
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
49
|
|
Section 12.6 Reinstatement
|
49
|
|
Article 13. Security
|
50
|
|
Section 13.1 Security
|
50
|
iv
Senior Indenture, dated as of _______________, 202__, between Horizon
Bancorp, Inc., a corporation duly organized and existing under the laws of the State of Indiana with its principal place of business located at 515 Franklin Street, Michigan City, Indiana 46360 (herein called the “Company”), and [Trustee], as trustee under this Indenture (herein called the “Trustee”).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior secured or unsecured
debentures, notes or other evidences of indebtedness (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
Article 1. Definitions and Other Provisions of General Application
Section 1.1 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) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(d) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case
may be, of this Indenture;
(e) 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;
(f) references to agreements and other instruments include subsequent amendments and supplements thereto;
(g) when used with respect to any Security, the words “convert”, “converted” and “conversion” are intended to refer to the right of
the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 3.1, and these words are not
intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 or another similar provision of
this Indenture, unless the context otherwise requires; and references herein to
1
the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 3.1; and
(h) unless the context otherwise requires, any reference to “duly provided for” and other words of similar import with respect to any
amount or property required to be paid or delivered, as applicable, shall include, without limitation, having made such amount or property available for payment or delivery.
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.4.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such
Depositary, if any, that are applicable to such matter at such time.
“Authenticating Agent” means, when used with respect to Securities of any series, any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate the Securities of such series.
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by an Officer of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any
series of the Securities and the forms and terms thereof), such action may be taken by any officer or employee of the Company authorized to take such action by the Board of Directors as evidenced by a Board Resolution.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close; provided that, when used with respect to any Security, “Business Day” may have such other meaning, if any, as may
be specified for such Security as contemplated by Section 3.1.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange
Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in
the name of the Company by any Officer of the Company, or any other officer or officers of the
2
Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time.
“Corporate Trust Office” means the designated office of the Trustee in ____________________ at which at any particular
time its corporate trust business shall be administered and which, at the date hereof, is located at _________________________________, Attention: ____________________ or at such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee.
“corporation” means a corporation, association, company (including a limited liability company), joint-stock company,
business trust or other similar entity.
“Covenant Defeasance” has the meaning specified in Section 12.3.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Defeasance” has the meaning specified in Section 12.2.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency that is designated to act as depositary for such Securities as contemplated by Section 3.1.
“DTC” has the meaning specified in Section 1.4.
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any statute successor thereto, in each case as
amended from time to time.
“Expiration Date” has the meaning specified in Section 1.4.
“GAAP” means, at any time, (a) generally accepted 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 have been approved by a
significant segment of the accounting profession in the United States or (b) if at such time the Company is required to prepare its financial statements for reports filed with the Commission under Section 13 or 15(d) of the Exchange Act pursuant to
standards other than those specified in clause (a) (which may include International Financial Reporting Standards), such other standards, in each case which are in effect at such time.
“Global Security” means a Security that evidences all or part of the Securities of any series.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and 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 any particular series or specific Securities within a series established as
contemplated by Section 3.1.
3
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest
on such Security.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein provided (as extended or deferred), whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 5.1(c).
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, a Vice
President, the Treasurer, the Assistant Treasurer, the Secretary or an Assistant Secretary of the Company.
“Officer’s Certificate” means a certificate signed by any Officer of the Company, or any other officer or officers of the
Company designated in a writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities as to which Defeasance has been effected pursuant to Section 12.2;
(d) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands
such Securities are valid obligations of the Company; and
(e) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been duly
provided for), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 3.1;
4
provided, however, that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (i) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.2, (ii) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.1, (iii) the principal amount of a Security
denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.1, of the
principal amount of such Security (or, in the case of a Security described in clause (i) or (ii) above, of the amount determined as provided in such clause), and (iv) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee of such Securities is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series and subject to Section 10.2, means the place or
places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.1.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or wrongfully taken Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or wrongfully taken Security.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.1.
“Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee within the corporate trust
department, including any Vice President, assistant secretary, assistant treasurer, assistant cashier, trust officer, assistant trust officer or assistant controller assigned to the Corporate Trust Office, or any other officer of the Trustee
customarily performing
5
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to
whom such matter is referred because of his knowledge of and familiarity with the particular subject, and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and any statute successor thereto, in each case as amended
from time to time.
“Security Register” and “Security Registrar” have the respective meanings
specified in Section 3.5.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any Person a majority of the combined voting power of the total outstanding ownership interests in
which is, at the time of determination, beneficially owned or held, directly or indirectly, by the Company or one or more other Subsidiaries. For this purpose, “voting power” means power to vote in an ordinary election of directors (or, in the case of
a Person that is not a corporation, ordinarily to appoint or approve the appointment of Persons holding similar positions), whether at all times or only as long as no senior class of ownership interests has such voting power by reason of any
contingency.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, 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.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this
instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“Uniform Commercial Code” means the Uniform Commercial Code in effect in the State of New York, as amended from time to
time.
“U.S. Government Obligation” has the meaning specified in Section 12.4.
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title “vice president.”
Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; provided, however, that no such opinion shall be required in connection with the issuance of Securities that are part of any series as to which such an opinion has been previously furnished. Each such certificate or opinion shall be given in
the form of an Officer’s Certificate, if
6
to be given by an Officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representation by, counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company,
unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.4 Acts of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or agents duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
7
Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, (a) a Holder, including a Depositary or its nominee
that is a Holder of a Global Security, may give, make or take, by an agent or agents duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted in or pursuant to this
Indenture to be given, made or taken by Holders, and a Depositary or its nominee that is a Holder of a Global Security may duly appoint in writing as its agent or agents members of, or participants in, such Depositary holding interests in such Global
Security in the records of such Depositary; and (b) with respect to any Global Security the Depositary for which is The Depository Trust Company (“DTC”), any consent or other action given, made or taken by an
“agent member” of DTC by electronic means in accordance with the Applicable Procedures of, and pursuant to authorization by, DTC shall be deemed to constitute the “Act” of the Holder of such Global Security, and such Act shall be deemed to have been
delivered to the Company and the Trustee upon the delivery by DTC of an “agent’s message” or other notice of such consent or other action having been so given, made or taken in accordance with the Applicable Procedures of DTC.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving, making or taking of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to give, make or take the relevant action, whether or not such Holders remain Holders after such record date; provided,
however, that no such action shall be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series
8
on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5 and Section 1.6.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving,
making or taking of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.11, in each case
with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to give, make or take such notice,
declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, however, that no such action shall be effective
hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is given, made or
taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5 and Section 1.6.
With respect to any record date set pursuant to this Section, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date to an earlier day
as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to give, make or take any action hereunder with regard to any particular Security may do so, in person
or by an agent duly appointed in writing, with regard to all or any part of the principal amount of such Security.
Section 1.5 Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (which may be by facsimile or electronic transmission) to or with the Trustee at _______________________________________, Attention: _______________, facsimile: _______________ or any other address previously furnished in
writing to the Company and the
9
Holders by the Trustee or (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first- class postage prepaid, to the Company at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if delivered electronically in accordance with the Applicable Procedures or in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for
such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
Section 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 1.10 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 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture, except as may otherwise be provided pursuant to Section 3.1 with respect to any
Securities of a particular series or under this Indenture with respect to such Securities.
10
Section 1.12 Governing Law. This Indenture and the Securities and the rights and obligations of the parties hereto and
thereto, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York, without regard to conflicts of laws principles thereof.
Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Maturity of any Security,
or any date on which a Holder has the right to convert his Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any), or conversion of such Security need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Maturity, or on such date for conversion, as the case may be.
Section 1.14 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other
indenture, loan or other agreement of the Company or any Subsidiaries of any thereof or of any other Person. Any such indenture, loan or other agreement may not be used to interpret this Indenture.
Section 1.15 No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive
liabilities under the federal securities laws.
Section 1.16 Language of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver, other
action or Act provided or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Section 1.17 Force Majeure. Subject to Section 6.1, in no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts
that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.18 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE 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.
Section 1.19 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.
Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a
relationship or opens an
11
account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.
Article 2. Security Forms
Section 2.1 Forms Generally. The Securities of each series shall be in such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto and with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities as
evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.
Section 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within‑mentioned Indenture.
|
[Trustee], as Trustee
|
||||
|
Dated:
|
By:
|
|||
|
Authorized Signatory
|
||||
Article 3. The Securities
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 and except
for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor
12
Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the
manner in which any payment may be made;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof, the denominations in which any Securities of the series shall be
issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies or
currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for the
purposes of making payment in the currency of the United States of America and applying the definition of “Outstanding” in Section 1.1;
(l) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies, composite currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies, composite currency, composite currencies or currency units in
which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(m) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
13
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 12.2
or Section 12.3 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or both such Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the establishment
of other arrangements) to satisfy the requirements of Section 12.4(a) for defeasance of such Securities and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(p) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security, any addition to, elimination of or other change in the circumstances set forth in
clause (b) of the penultimate paragraph of Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges or transfers of any such Global Security;
(q) any addition to, elimination of or other 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 5.2;
(r) any addition to, elimination of or other change in the covenants set forth in Article 10 which applies to Securities of the
series;
(s) any provisions necessary to permit or facilitate the issuance, payment or conversion of any Securities of the series that may be
converted into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in lieu of, any payment of principal or other amount and whether at the option of the Company or otherwise;
(t) if applicable, that Persons other than those specified in Section 1.11 shall have such benefits, rights, remedies and claims with
respect to any Securities of the series or under this Indenture with respect to such Securities, as and to the extent provided for such Securities;
(u) any change in the actions permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities
of the series, including any such change that permits or requires any or all such actions to be taken by or on behalf of the
14
Holders of any specific Securities of the series rather than or in addition to the Holders of all Securities of the series;
(v) any provisions for subordination of any Securities of the series to other indebtedness of the Company (including Securities of
other series);
(w) if the Securities of the series are to be guaranteed, the names of the guarantors of the Securities of the series and the terms of
the guarantees of the securities of the series;
(x) whether the Securities of such series are to be secured by any property, assets or other collateral and, if so, the applicable
collateral, any deletions from, or modifications or additions to, the provisions of Article 13 hereof or any other provisions of this Indenture in connection therewith or in connection with any other instrument or agreement entered into in connection
therewith; and
(y) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(g)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued
at the same time and, unless otherwise provided pursuant to this Section 3.1 for any series, after issuance of Securities of such series, such series may be reopened for issuances of additional Securities of that series.
The terms of any Security of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section
3.1. The matters referenced in any or all of clauses (a) through (y) above may be established and set forth or determined as aforesaid with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust
Indenture Act).
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
Section 3.2 Denominations. The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 3.1. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000
and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company
by its Chairman of the Board, President or a Vice President of the Company (or any other officer of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time). The signature
of any of these officers on the Securities may be manual, facsimile or electronic.
Securities endorsed thereon bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper officers of the Company shall
bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
15
authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
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 the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Section 2.1 and Section 3.1, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture; and
(b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this Indenture.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of
such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated as of the date of its authentication.
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 the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. 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 which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
16
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor
one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. 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 and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at each office or
agency of the Company designated as a Place of Payment pursuant to the first paragraph of Section 10.2 a register (the register maintained in each such office or agency of the Company in a Place of Payment being herein sometimes collectively referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. [Each such office
or agency] is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities, which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in whole or in part, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a
17
period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any such Securities under Section 11.3 and ending at the close of business
on the day of such mailing (or during such period as otherwise specified pursuant to Section 3.1 for such Securities), or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as
contemplated by Section 3.1, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary has notified the Company that it (A) is unwilling or unable to continue as Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act,
or (ii) the Company has executed and delivered to the Trustee a Company Order stating that such Global Security shall be exchanged in whole for Securities that are not Global Securities (in which case such exchange shall promptly be effected by the
Trustee). If the Company receives a notice of the kind specified in clause (i) above or has delivered a Company Order of the kind specified in clause (ii) above, it may, in its sole discretion, designate a successor Depositary for such Global Security
within 90 days after receiving such notice or delivery of such order, as the case may be. If the Company designates a successor Depositary as aforesaid, such Global Security shall promptly be exchanged in whole for one or more other Global Securities
registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of clauses (a), (b), (c) and (d) of this provision shall continue
to apply thereto.
(c) Subject to clause (b) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.1, any
exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section, Section 3.4, Section 3.6, Section 9.6 or Section 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Every Person who takes or holds any beneficial interest in a Global Security agrees that:
(i) the Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized
representative of such Person;
18
(ii) such Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those
established by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary;
(iii) the Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit
distributions of principal and interest on the Global Securities to, such Persons in accordance with the Applicable Procedures of the Depositary; and
(iv) none of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.6 Mutilated, Destroyed, Lost and Wrongfully Taken Securities. If (a) any mutilated Security is surrendered to
the Trustee or (b) both (i) there shall be delivered to the Company and the Trustee (A) a claim by a Holder as to the destruction, loss or wrongful taking of any Security of such Holder and a request thereby for a new replacement Security of the same
series, and (B) such indemnity bond as may be required by them to save each of them and any agent of either of them harmless and (ii) such other reasonable requirements as may be imposed by the Company as permitted by Section 8‑405 of the Uniform
Commercial Code have been satisfied, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a “protected purchaser” within the meaning of Section 8‑405 of the Uniform Commercial Code, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor and principal amount and bearing a number not
contemporaneously Outstanding. In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
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 relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or wrongfully taken 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.
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 wrongfully taken Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section
3.1 with respect to any Securities of a series, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest (or,
19
if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 5:00 P.M. New York City time on such date).
Any interest on any Security of any series which 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 Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest payable on any Securities of a series 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, 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 of such Securities 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 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of such Securities in the manner set forth in Section 1.6, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, 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 (b).
(b) The Company may make payment of any Defaulted Interest on any Securities of a series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Except as may otherwise be provided in this Section 3.7 or as contemplated in Section 3.1 with respect to any Securities of a series, the Person to whom interest
shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
20
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable.
Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such
additions, changes or omissions as may be provided thereby, to such Security.
Section 3.8 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company
and the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.9 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and 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 which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, 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. All canceled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 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 CUSIP Numbers. The Company in issuing the Securities may use CUSIP numbers (if then generally in use) and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such CUSIP numbers. The Company shall
promptly notify the Trustee in writing of any change in the CUSIP numbers.
Article 4. Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture. Except as otherwise provided for pursuant to Section 3.1 with
respect to the Securities or any series thereof, this Indenture shall
21
upon Company Request cease to be of further effect with respect to the Securities of any series and any guarantees of such Securities (except as to any surviving rights of
conversion, registration of transfer or exchange of any such Security expressly provided for herein or in the terms of such Security and rights to receive payments of principal of, and premium (if any), and interest on such Securities), and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(a) Either:
(i) all such Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or
wrongfully taken and which have been replaced or paid as provided in Section 3.6, 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 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation
(A) have become due and payable by reason of the making of a notice of redemption or otherwise, or
(B) will become due and payable at their Stated Maturity within one year, or
(C) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
and the Company, in the case of (A), (B) or (C) directly above, has deposited or caused to be deposited with the Trustee or Paying Agent as trust funds in trust
for such purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; 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 Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent under Section 6.14, and, if money shall have been deposited with the Trustee pursuant to subclause (a)(i)(B) of this Section with respect to such
22
Securities, and the obligations of the Trustee under Section 4.2, Section 6.6 and the last paragraph of Section 10.3 with respect to such Securities shall survive such satisfaction
and discharge.
Section 4.2 Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 with respect to Securities of any series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 4.1 (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request, to the extent originally deposited by the
Company. The Company may direct by a Company Order the investment of any money deposited with the Trustee pursuant to Section 4.1, without distinction between principal and income, in (a) United States Treasury Securities with a maturity of one year or
less or (b) a money market fund that invests solely in short term United States Treasury Securities and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities or funds meeting the criteria
specified in clause (a) or (b) of this sentence.
Article 5. Remedies
Section 5.1 Events of Default. Except as may otherwise be provided pursuant to Section 3.1 for all or any specific
Securities of any series, “Event of Default,” wherever used herein with respect to the Securities of that series, means any one of the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable (as extended or deferred),
and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, any premium or sinking fund payment, if any, on any Security of that series at its
Maturity; or
(c) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 30% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and requiring it to be remedied within a specified time after receipt of such notice and stating that such notice is a “Notice of Default”
hereunder; or
(d) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition
23
of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days (provided that, if any Person becomes the successor to the Company pursuant to Article 8 and such Person is organized and validly existing under the law of a jurisdiction outside the United States, each
reference in this clause (d) to an applicable Federal or State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor to the Company
hereunder and is so organized and existing); or
(e) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, 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 such action (provided that, if any Person becomes the successor to the Company pursuant to Article 8 and such Person is organized and validly existing under the law of a jurisdiction outside the United
States, each reference in this clause (e) to an applicable Federal or State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor to the
Company hereunder and is so organized and existing); or
(f) any other Event of Default provided with respect to Securities of that series in accordance with Section 3.1.
Section 5.2 Acceleration of Maturity; Rescission and Annulment. Except as may otherwise be provided pursuant to
Section 3.1 for all or any specific Securities of any series, if an Event of Default (other than an Event of Default specified in Section 5.1(d) or Section 5.1(e)) with respect to Securities of that series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than 30% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, in the case of any Security
of that series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) 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 declaration such principal amount (or specified amount) shall become immediately due and payable. Except as may otherwise be provided pursuant to Section 3.1 for all or any specific Securities of any
series, if an Event of Default specified in Section 5.1(d) or Section 5.1(e) with respect to Securities of that series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in the case of any Security of
24
that series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
Except as may otherwise be provided pursuant to Section 3.1 for all or any specific Securities of any series, at any time after such a declaration of acceleration
with respect to Securities of that series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(i) all overdue interest on all Securities of that series;
(ii) 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;
(iii) 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
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events 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 declaration of acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
25
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. The Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that 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 5.5 Trustee May Enforce Claims without Possession of Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.7;
Second: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the remainder, if any, to the Company or to whomsoever may be lawfully entitled to receive
the same as a court of competent jurisdiction may direct.
Section 5.7 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
26
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the losses, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60‑day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
Section 5.8 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 5.9 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.11 Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided
that
27
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability.
Section 5.12 Waiver of Past Defaults. Except as may otherwise be provided pursuant to Section 3.1 for all or any
specific Securities of any series, the Holders of not less than a majority in principal amount (including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Outstanding Securities of any series
to be affected under this Indenture may by notice to the Trustee on behalf of the Holders of all the Securities of such series waive any existing default and its consequences hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of or any premium or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver with respect to any series, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
with respect to such series for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. A waiver of any past default and its consequences given by or on behalf of any
Holder of Securities in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such purchase, tender or exchange.
Section 5.13 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorneys’
fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company or the Trustee or, if applicable, in any suit for the enforcement of the right to convert any Security in accordance with its terms.
Section 5.14 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article 6. The Trustee
28
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and as are
provided by the Trust Indenture Act, and, except for implied covenants or obligations under the Trust Indenture Act, no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of the first paragraph of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 5.11, relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(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.
29
Section 6.2 Notice of Defaults. If a default occurs hereunder with respect to Securities of any series, the Trustee
shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.3 Certain Rights of Trustee. Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be entitled to receive and may, in the absence of bad faith on its part, conclusively rely upon, an Officer’s
Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder and shall not be responsible for the supervision of officers and employees of
such agents or attorneys;
30
(h) the Trustee may request that the Company deliver an Officer’s 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 Officer’s 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;
(i) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(k) the rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.8 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the Company and Trustee shall agree in writing for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct; and
31
(c) to indemnify each of the Trustee or any predecessor Trustee and its officers, directors, agents and employees for, and to hold it
harmless against, any and all losses, liabilities, damages, claims or expenses including taxes (other than taxes based upon, measured by or determined by the earnings or income of the Trustee) incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section the Trustee shall have a lien prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on Securities.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1(d) or Section 5.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal
or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture.
Section 6.8 Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such conflict of interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the
Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) trustee hereunder
with respect to the Securities of each series, which may be trustee hereunder for Securities of one or more other series. Each trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and
surplus of at least $50,000,000 and has its Corporate Trust Office in the continental United States of America. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 60 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the
32
Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of a notice of removal
pursuant to this paragraph, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) 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, the Company, by a Board Resolution, may remove the Trustee with respect to all Securities, or subject to Section 5.13, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of itself 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.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of
33
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
34
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with
respect to any series of Securities which shall be authorized to act on behalf of the Trustee to authenticate the Securities of such series issued upon original issue and upon exchange, registration of transfer, partial conversion or partial redemption
or pursuant to Section 3.6, and Securities of such series 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. Wherever reference is made
in this Indenture to the authentication and delivery of Securities of such series by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent so appointed with respect to such series and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent so appointed with respect to such series. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee, the Company, the Authenticating Agent or such successor
corporation. An
35
Authenticating Agent may resign at any time by giving 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, the Trustee may appoint a successor Authenticating Agent with respect to any series of Securities which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of
such series in the manner provided in Section 1.6. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section with respect to Securities of any series, the Securities of such series may have endorsed thereon, in addition
to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
|
[Trustee], as Trustee
|
||
|
By:
|
||
|
As Authenticating Agent
|
||
|
By:
|
||
|
Authorized Signatory
|
||
Article 7. Holders’ Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee
(a) semi-annually, not later than ____________________ and ____________________ in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of the immediately preceding ___________________ or ____________________ as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders. The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
36
contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights
and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither of the Company nor the Trustee nor any agent
of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than ____________________ and shall be dated as
of ____________________ in each calendar year, commencing in 202__.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are
listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange and of any delisting thereof.
Section 7.4 Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, if any, at the times and in the manner provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually filed with the Commission. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the compliance by
the Company with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Article 8. Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge
into any other Person or sell, convey, transfer or lease all or substantially all its properties and assets to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
(a) in case the Company shall consolidate with or merge into another Person or sell, convey, transfer or lease all or substantially
all its properties and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale, conveyance or transfer, or which leases, all or substantially all the properties and assets
of the Company shall be organized and validly existing under the laws of the United States, any State thereof or the District of Columbia and shall
37
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably 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 and, for each Security that by its terms
provides for conversion, shall have provided for the right to convert such Security in accordance with its terms;
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2 Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any
other Person or any sale, conveyance, transfer or lease of all or substantially all the properties and assets of the Company in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or to
which such sale, conveyance, transfer or 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 thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Article 9. Supplemental Indentures
Section 9.1 Supplemental Indentures without Consent of Holders. Except as may otherwise be provided pursuant to
Section 3.1 for all or any specific Securities of any series, without the consent of any Holders, the Company, when authorized by a Board Resolution, 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 of the following purposes:
(a) to cure any ambiguity or omission, to correct or supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; or
(b) to comply with Article 8; or
(c) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities, as the case may be; or
(d) to add to the covenants of the Company for the benefit of the Holders of all or any Securities of any series (and if such
covenants are to be for the benefit of less than all Securities of such series, stating that such covenants are expressly being included solely for the benefit of such Securities within such series) or to surrender any right or power herein conferred
upon the Company with regard to all or any Securities of any series (and
38
if any such surrender is to be made with regard to less than all Securities of such series, stating that such surrender is expressly being made solely with regard
to such Securities within such series); or
(e) to add any additional Events of Default for the benefit of the Holders of all or any Securities of any series (and if such
additional Events of Default are to be for the benefit of less than all Securities of such series, stating that such additional Events of Default are expressly being included solely for the benefit of such Securities within such series); or
(f) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in definitive form, or to permit or facilitate the issuance of Securities in uncertificated form; or
(g) to add to, change or eliminate any of the provisions of this Indenture in respect of all or any Securities of any series (and if
such addition, change or elimination is to apply with respect to less than all Securities of such series stating that it is expressly being made to apply solely with respect to such Securities within such series), provided that any such addition,
change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision, or (ii) shall become effective only when there is no such Security Outstanding; or
(h) to secure the Securities; or
(i) to establish the form or terms of all or any Securities of any series as permitted by Section 2.1 and Section 3.1; or
(j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(k) to add to or change any of the provisions of this Indenture with respect to any Securities that by their terms may be converted
into securities or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such Securities; or
(l) to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture
Act; or
(m) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Securities; provided, however, that (i) compliance with this Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other
applicable securities law, and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Securities; or
(n) to add any Person as a guarantor under this Indenture, to add guarantees in respect of any Securities under this Indenture, or to
evidence the release and discharge of any guarantor from its obligation under its guarantees of any Securities and its obligations
39
under this Indenture in respect of any Securities in accordance with the terms of this Indentures; or
(o) to make any other change to this Indenture that does not adversely affect the rights of the Holders of Securities of any series in
any material respect.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.2 Supplemental Indentures with Consent of Holders. Except as may otherwise be provided pursuant to Section
3.1 for all or any specific Securities of any series, with the consent of the Holders of a majority in principal amount (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Outstanding
Securities of all series affected by such supplemental indenture (considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different series and, with respect to any series, potentially
comprising fewer than all the Securities of such series), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Securities),
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or
(b) permit the Company to redeem any Security if, absent such supplemental indenture, the Company would not be permitted to do so, or
(c) change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable,
or
(d) change the ranking or priority of any Security that would adversely affect the Holders, or
(e) impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(f) reduce the percentage in principal amount of the Outstanding Securities of any one or more series (considered separately or
together as one class, as applicable, and whether comprising the same or different series or less than all the Securities of a series), the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
40
(g) modify any of the provisions of this Section, Section 5.12 or Section 10.6, 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 10.6, or the deletion of this proviso, in accordance with the
requirements of Section 6.11 and Section 9.1(j).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of
one or more particular Securities or series of Securities, or which modifies the rights of the Holders of such Securities or series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of any other Securities or of any other series, as applicable. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A consent to any indenture supplemental hereto by or on behalf of any Holder of Securities given in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered
invalid by such purchase, tender or exchange.
Section 9.3 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in conclusively relying upon, an
Opinion of Counsel and Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel shall be required for the Trustee to execute any amendment or supplement adding a guarantee under this
Indenture.
Section 9.4 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 9.5 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
41
Article 10. Covenants
Section 10.1 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion
and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. 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 its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.1, the Corporate Trust Office
of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall
be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 10.3 Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to 11:00 A.M., New York City time, on each due date
of the principal of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 12.4(a), cause such trustee to deposit) with a Paying Agent a sum sufficient
to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
42
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, and (b) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on
any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may, at the
direction and expense of the Company, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the city of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4 Corporate Existence. Subject to Article 8, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence.
Section 10.5 Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have
knowledge.
Section 10.6 Waiver of Certain Covenants. Except as otherwise provided pursuant to Section 3.1 for all or any
Securities of any series, the Company may, with respect to all or any Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in Section 10.4 and Section 10.5 or in any covenant provided
pursuant to Section 3.1(r) or Section 9.1(d) for the benefit of the Holders of such series if, before the time for such compliance, the Holders of a majority in principal amount (including waivers obtained in connection with a purchase of, or tender
offer or exchange offer for, Securities) of all Outstanding Securities affected by such waiver (considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different series and, with
respect to
43
any particular series, potentially comprising fewer than all the Securities of such series) shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. A waiver of compliance given by or on behalf of any Holder of Securities in connection with a purchase of, or tender
or exchange offer for, such Holder’s Securities will not be rendered invalid by such purchase, tender or exchange.
Article 11. Redemption of Securities
Section 11.1 Applicability of Article. Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for such Securities) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be
established in or pursuant to a Board Resolution or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any
such redemption affecting only a single Security), the Company shall, not less than 30 days nor more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company that is subject to a condition specified in the terms of the Securities of the series to be redeemed, the Company
shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 11.3 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 40 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of
the principal amount of any Security of such series, 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. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 40 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as it may be) to be the portion selected for redemption.
44
Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be
redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such
Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.4 Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 3.1 for the relevant Securities), to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,
(d) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price,
(f) for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate, and the place or places where such Securities may be surrendered for conversion,
(g) that the redemption is for a sinking fund, if such is the case, and
(h) if the redemption is conditioned upon the satisfaction of one or more conditions, a statement to such effect and identifying the
conditions.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.
45
Section 11.5 Deposit of Redemption Price. Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 3.7 or in the terms of such Security) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such trust.
Section 11.6 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, subject to the satisfaction of any conditions precedent provided in such notice, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued interest) 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, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section
3.1, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or 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 and of like tenor, 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.
Article 12. Defeasance and Covenant Defeasance
Section 12.1 Company’s Option to Effect Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to
Section 3.1(o), the Securities or any series of Securities shall be subject to defeasance or covenant defeasance pursuant to Section 12.2 or Section 12.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article. The Company may elect, at its option, at any time, to have Section 12.2 or Section 12.3 applied to any Securities or any series of Securities so subject to defeasance or covenant
defeasance. Any such election shall be evidenced
46
by a Board Resolution or in another manner specified as contemplated by Section 3.1 for such Securities.
Section 12.2 Defeasance and Discharge. Upon the Company’s exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in
Section 12.4 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other respective obligations under such Securities and this Indenture with respect to such Securities (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 12.4(a) and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (b) the obligations of the Company with respect to such Securities under Section 3.4, Section 3.5, Section 3.6, Section 10.4 and
Section 10.5, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 12.3 applied to such Securities.
Section 12.3 Covenant Defeasance. Upon the Company’s exercise of its option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Section 10.4 and Section 10.5 and any covenants provided pursuant to Section 3.1(r) or Section 9.1(d) for the benefit of the
Holders of such Securities, and (b) the occurrence of any event specified in Section 5.1(c) (or with respect to any such covenants provided pursuant to Section 3.1(r), Section 9.1(d) or Section 5.1(f)) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 12.4 are satisfied (hereinafter called “Covenant Defeasance”). For this
purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so
specified, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and
such Securities shall be unaffected thereby.
Section 12.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application
of Section 12.2 or Section 12.3 to any Securities or any series of Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to,
the benefits of the Holders of such Securities, (i) money in an amount, or (ii) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount,
47
or (iii) such other obligations or arrangements as may be specified as contemplated by Section 3.1 with respect to such Securities, or (iv) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (A) any security which is (1) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (2)
an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case (1) or (2), is not callable or redeemable at the option of the issuer thereof, and (B) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (A) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so
specified and held, 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 principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 12.2 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(c) In the event of an election to have Section 12.3 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or
any other securities (other than such
48
an event or Event of Default solely with respect to such securities resulting from the borrowing of funds to be applied to such deposit) shall have occurred and
be continuing at the time of such deposit.
(f) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is bound.
(g) The Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of such Securities over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company.
(h) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject
to the provisions of the last paragraph of Section 10.3, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 12.6, the
Trustee and any such other qualifying trustee are referred to collectively as the “Trustee”) pursuant to Section 12.4 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent or any Subsidiary or Affiliate of the Company acting as Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money and U.S. Government Obligations so held in trust need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 12.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 12.4 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 12.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the respective obligations under this Indenture and such Securities
from which the Company has been discharged or released pursuant to Section 12.2 or Section 12.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 12.5 with respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or
49
interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
Article 13. Security
Section 13.1 Security. If so provided pursuant to Section 3.1 with respect to the Securities of any series, the
Securities of such series may be secured by such property, assets or other collateral as may be specified in or pursuant to Section 3.1. Any and all terms and provisions applicable to the security for the Securities of such series shall also be
provided in or pursuant to Section 3.1, which may include, without limitation, provisions for the execution and delivery of such security agreements, pledge agreements, collateral agreements and other similar or related agreements as the Company may
elect and which may provide for the Trustee to act as collateral agent or in a similar or other capacity. The Trustee shall comply with Sections 313(a)(5) and (6) and 313(b)(1) of the Trust Indenture Act, and the Company shall comply with Sections
314(b), 314(c) and 314(d) of the Trust Indenture Act, in each case, in respect of any secured Securities that may be outstanding hereunder from time to time.
* * * * *
This instrument 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. The exchange of copies of this Indenture and of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission shall constitute effective execution and delivery of this
Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf” or “.tif”) shall be deemed to be their original
signatures for all purposes.
50
In Witness Whereof, the parties hereto have caused this Senior Indenture to be duly executed as of the day and year
first above written.
|
Horizon Bancorp, Inc.
|
|
|
By: ______________________________
|
|
|
Printed: __________________________
|
|
|
Title: _____________________________
|
|
|
[Trustee], as Trustee
|
|
|
By: ______________________________
|
|
|
Printed: __________________________
|
|
|
Title: _____________________________
|
Exhibit 4.10
Horizon Bancorp, Inc.
as Issuer
and
[Trustee]
as Trustee
Subordinated Indenture
Dated as of _______________, 202__
Horizon Bancorp, Inc.
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939
inclusive, of the Trust Indenture Act of 1939
|
Trust Indenture Act Section
|
Indenture Section
|
|
Section 3.10(a)(1)
|
6.9
|
|
(a)(2)
|
6.9
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(b)
|
6.8
|
|
Section 3.11(a)
|
6.13
|
|
(b)
|
6.13
|
|
Section 3.12(a)
|
7.1, 7.2
|
|
(b)
|
7.2
|
|
(c)
|
7.2
|
|
Section 3.13(a)
|
7.3, 14.1
|
|
(b)
|
7.3, 14.1
|
|
(c)
|
7.3
|
|
(d)
|
7.3
|
|
Section 3.14(a)
|
7.4
|
|
(a)(4)
|
1.1
|
|
(b)
|
14.1
|
|
(c)
|
14.1
|
|
(c)(1)
|
1.2, 14.1
|
|
(c)(2)
|
1.2
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
14.1
|
|
(e)
|
1.2
|
|
Section 3.15(a)
|
6.1
|
|
(b)
|
6.2
|
|
(c)
|
6.1
|
|
(d)
|
6.1
|
|
(e)
|
5.13
|
|
Section 3.16(a)
|
1.1
|
|
(a)(1)(A)
|
5.2, 5.11
|
|
(a)(1)(B)
|
5.12
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
Not Applicable
|
|
(c)
|
1.4
|
|
Section 3.17(a)(1)
|
5.3
|
|
(a)(2)
|
5.4
|
|
(b)
|
10.3
|
|
Section 3.18(a)
|
1.7
|
|
__________________________________
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Table of Contents
|
Page
|
|
|
Article 1. Definitions and Other Provisions of General Application
|
1
|
|
Section 1.1 Definitions
|
1
|
|
Section 1.2 Compliance Certificates and Opinions
|
7
|
|
Section 1.3 Form of Documents Delivered to Trustee
|
7
|
|
Section 1.4 Acts of Holders; Record Dates
|
8
|
|
Section 1.5 Notices, Etc., to Trustee and Company
|
10
|
|
Section 1.6 Notice to Holders; Waiver
|
10
|
|
Section 1.7 Conflict with Trust Indenture Act
|
11
|
|
Section 1.8 Effect of Headings and Table of Contents
|
11
|
|
Section 1.9 Successors and Assigns
|
11
|
|
Section 1.10 Separability Clause
|
11
|
|
Section 1.11 Benefits of Indenture
|
11
|
|
Section 1.12 Governing Law
|
11
|
|
Section 1.13 Legal Holidays
|
11
|
|
Section 1.14 No Adverse Interpretation of Other Agreements
|
11
|
|
Section 1.15 No Personal Liability of Directors, Officers, Employees and Stockholders
|
12
|
|
Section 1.16 Language of Notices, Etc
|
12
|
|
Section 1.17 Force Majeure
|
12
|
|
Section 1.18 Waiver of Jury Trial
|
12
|
|
Section 1.19 U.S.A. Patriot Act
|
12
|
|
Article 2. Security Forms
|
12
|
|
Section 2.1 Forms Generally
|
12
|
|
Section 2.2 Form of Trustee’s Certificate of Authentication
|
13
|
|
Article 3. The Securities
|
13
|
|
Section 3.1 Amount Unlimited; Issuable in Series
|
13
|
|
Section 3.2 Denominations
|
16
|
|
Section 3.3 Execution, Authentication, Delivery and Dating
|
16
|
|
Section 3.4 Temporary Securities
|
17
|
|
Section 3.5 Registration, Registration of Transfer and Exchange
|
17
|
|
Section 3.6 Mutilated, Destroyed, Lost and Wrongfully Taken Securities
|
19
|
|
Section 3.7 Payment of Interest; Interest Rights Preserved
|
20
|
|
Section 3.8 Persons Deemed Owners
|
21
|
i
|
Section 3.9 Cancellation
|
22
|
|
Section 3.10 Computation of Interest
|
22
|
|
Section 3.11 CUSIP Numbers
|
22
|
|
Article 4. Satisfaction and Discharge
|
22
|
|
Section 4.1 Satisfaction and Discharge of Indenture
|
22
|
|
Section 4.2 Application of Trust Money
|
23
|
|
Article 5. Remedies
|
23
|
|
Section 5.1 Events of Default
|
24
|
|
Section 5.2 Acceleration of Maturity; Rescission and Annulment
|
25
|
|
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee
|
26
|
|
Section 5.4 Trustee May File Proofs of Claim
|
26
|
|
Section 5.5 Trustee May Enforce Claims without Possession of Securities
|
27
|
|
Section 5.6 Application of Money Collected
|
27
|
|
Section 5.7 Limitation on Suits
|
27
|
|
Section 5.8 Restoration of Rights and Remedies
|
28
|
|
Section 5.9 Rights and Remedies Cumulative
|
28
|
|
Section 5.10 Delay or Omission Not Waiver
|
28
|
|
Section 5.11 Control by Holders
|
28
|
|
Section 5.12 Waiver of Past Defaults
|
28
|
|
Section 5.13 Undertaking for Costs
|
29
|
|
Section 5.14 Waiver of Usury, Stay or Extension Laws
|
29
|
|
Article 6. The Trustee
|
29
|
|
Section 6.1 Certain Duties and Responsibilities
|
29
|
|
Section 6.2 Notice of Defaults
|
30
|
|
Section 6.3 Certain Rights of Trustee
|
30
|
|
Section 6.4 Not Responsible for Recitals or Issuance of Securities
|
31
|
|
Section 6.5 May Hold Securities
|
32
|
|
Section 6.6 Money Held in Trust
|
32
|
|
Section 6.7 Compensation and Reimbursement
|
32
|
|
Section 6.8 Conflicting Interests
|
33
|
|
Section 6.9 Corporate Trustee Required; Eligibility
|
33
|
|
Section 6.10 Resignation and Removal; Appointment of Successor
|
33
|
|
Section 6.11 Acceptance of Appointment by Successor
|
34
|
|
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
|
35
|
|
Section 6.13 Preferential Collection of Claims Against Company
|
35
|
ii
|
Section 6.14 Appointment of Authenticating Agent
|
36
|
|
Article 7. Holders’ Lists and Reports by Trustee and Company
|
37
|
|
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders
|
37
|
|
Section 7.2 Preservation of Information; Communications to Holders
|
37
|
|
Section 7.3 Reports by Trustee
|
37
|
|
Section 7.4 Reports by Company
|
38
|
|
Article 8. Consolidation, Merger, Conveyance, Transfer or Lease
|
38
|
|
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms
|
38
|
|
Section 8.2 Successor Substituted
|
38
|
|
Article 9. Supplemental Indentures
|
39
|
|
Section 9.1 Supplemental Indentures without Consent of Holders
|
39
|
|
Section 9.2 Supplemental Indentures with Consent of Holders
|
40
|
|
Section 9.3 Execution of Supplemental Indentures
|
41
|
|
Section 9.4 Effect of Supplemental Indentures
|
42
|
|
Section 9.5 Conformity with Trust Indenture Act
|
42
|
|
Section 9.6 Reference in Securities to Supplemental Indentures
|
42
|
|
Section 9.7 Subordination Unimpaired
|
42
|
|
Article 10. Covenants
|
42
|
|
Section 10.1 Payment of Principal, Premium and Interest
|
42
|
|
Section 10.2 Maintenance of Office or Agency
|
42
|
|
Section 10.3 Money for Securities Payments to Be Held in Trust
|
43
|
|
Section 10.4 Corporate Existence
|
44
|
|
Section 10.5 Statement by Officers as to Default
|
44
|
|
Section 10.6 Waiver of Certain Covenants
|
44
|
|
Article 11. Redemption of Securities
|
44
|
|
Section 11.1 Applicability of Article
|
44
|
|
Section 11.2 Election to Redeem; Notice to Trustee
|
45
|
|
Section 11.3 Selection by Trustee of Securities to Be Redeemed
|
45
|
|
Section 11.4 Notice of Redemption
|
46
|
|
Section 11.5 Deposit of Redemption Price
|
46
|
|
Section 11.6 Securities Payable on Redemption Date
|
47
|
|
Section 11.7 Securities Redeemed in Part
|
47
|
|
Article 12. Defeasance and Covenant Defeasance
|
47
|
|
Section 12.1 Company’s Option to Effect Defeasance or Covenant Defeasance
|
47
|
|
Section 12.2 Defeasance and Discharge
|
47
|
iii
|
Section 12.3 Covenant Defeasance
|
48
|
|
Section 12.4 Conditions to Defeasance or Covenant Defeasance
|
48
|
|
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
50
|
|
Section 12.6 Reinstatement
|
50
|
|
Article 13. Subordination of Securities
|
51
|
|
Section 13.1 Securities Subordinate to Senior Debt
|
51
|
|
Section 13.2 Payment Over of Proceeds upon Dissolution, Etc
|
51
|
|
Section 13.3 Prior Payment to Senior Debt upon Acceleration of Securities
|
52
|
|
Section 13.4 No Payment When Senior Debt in Default
|
52
|
|
Section 13.5 Payment Permitted in Certain Situations
|
53
|
|
Section 13.6 Subrogation to Rights of Holders of Senior Debt
|
53
|
|
Section 13.7 Provisions Solely to Define Relative Rights
|
54
|
|
Section 13.8 Trustee to Effectuate Subordination
|
54
|
|
Section 13.9 No Waiver of Subordination Provisions
|
54
|
|
Section 13.10 Notice to Trustee
|
55
|
|
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating Agent
|
55
|
|
Section 13.12 Trustee Not Fiduciary For Holders of Senior Debt
|
55
|
|
Section 13.13 Rights of Trustee as Holder of Senior Debt; Preservation of Trustees Rights
|
55
|
|
Section 13.14 Article Applicable to Paying Agents
|
56
|
|
Article 14. Security
|
56
|
|
Section 14.1 Security
|
56
|
iv
Subordinated Indenture, dated as of _______________, 202__, between Horizon Bancorp, Inc., a corporation
duly organized and existing under the laws of the State of Indiana with its principal place of business located at 515 Franklin Street, Michigan City, Indiana 46360 (herein called the “Company”), and [Trustee], as trustee under this Indenture (herein called the “Trustee”).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated secured or
unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
Article 1. Definitions and Other Provisions of General Application
Section 1.1 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) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(d) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case
may be, of this Indenture;
(e) 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;
(f) references to agreements and other instruments include subsequent amendments and supplements thereto;
(g) when used with respect to any Security, the words “convert”, “converted” and “conversion” are intended to refer to the right of
the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 3.1, and these words are not
intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 or another similar provision of
this Indenture, unless the context otherwise requires; and references herein to
1
the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 3.1; and
(h) unless the context otherwise requires, any reference to “duly provided for” and other words of similar import with respect to any
amount or property required to be paid or delivered, as applicable, shall include, without limitation, having made such amount or property available for payment or delivery.
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.4.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such
Depositary, if any, that are applicable to such matter at such time.
“Authenticating Agent” means, when used with respect to Securities of any series, any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate the Securities of such series.
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by an Officer of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any
series of the Securities and the forms and terms thereof), such action may be taken by any officer or employee of the Company authorized to take such action by the Board of Directors as evidenced by a Board Resolution.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close; provided that, when used with respect to any Security, “Business Day” may have such other meaning, if any, as may
be specified for such Security as contemplated by Section 3.1.
“Capital Stock” means:
(a) in the case of a corporation, corporate stock;
(b) in the case of a limited liability company or similar entity, any membership or similar interests therein;
(c) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(d) in the case of a partnership, partnership interests (whether general or limited); and
2
(e) 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.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange
Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in
the name of the Company by any Officer of the Company, or any other officer or officers of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time.
“Corporate Trust Office” means the designated office of the Trustee in ____________________ at which at any particular
time its corporate trust business shall be administered and which, at the date hereof, is located at _________________________________, Attention: ____________________ or at such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee.
“corporation” means a corporation, association, company (including a limited liability company), joint-stock company,
business trust or other similar entity.
“Covenant Defeasance” has the meaning specified in Section 12.3.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Defeasance” has the meaning specified in Section 12.2.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency that is designated to act as depositary for such Securities as contemplated by Section 3.1.
“DTC” has the meaning specified in Section 1.4.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock).
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any statute successor thereto, in each case as
amended from time to time.
“Expiration Date” has the meaning specified in Section 1.4.
“GAAP” means, at any time, (a) generally accepted 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 have been approved by a
significant segment of the accounting profession in the United States or (b) if at such time the Company is required to prepare its financial statements for reports filed with the Commission
3
under Section 13 or 15(d) of the Exchange Act pursuant to standards other than those specified in clause (a) (which may include International Financial Reporting Standards), such
other standards, in each case which are in effect at such time.
“Global Security” means a Security that evidences all or part of the Securities of any series.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indebtedness” means 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.
“Indenture” means this instrument as originally executed and 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 any particular series or specific Securities within a series established as
contemplated by Section 3.1.
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest
on such Security.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein provided (as extended or deferred), whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 5.1(c).
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, a Vice
President, the Treasurer, the Assistant Treasurer, the Secretary or an Assistant Secretary of the Company.
“Officer’s Certificate” means a certificate signed by any Officer of the Company, or any other officer or officers of the
Company designated in a writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
4
(b) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities as to which Defeasance has been effected pursuant to Section 12.2;
(d) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands
such Securities are valid obligations of the Company; and
(e) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been duly
provided for), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 3.1;
provided, however, that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (i) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.2, (ii) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.1, (iii) the principal amount of a Security
denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.1, of the
principal amount of such Security (or, in the case of a Security described in clause (i) or (ii) above, of the amount determined as provided in such clause), and (iv) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee of such Securities is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
5
“Place of Payment”, when used with respect to the Securities of any series and subject to Section 10.2, means the place or
places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.1.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or wrongfully taken Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or wrongfully taken Security.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.1.
“Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee within the corporate trust
department, including any Vice President, assistant secretary, assistant treasurer, assistant cashier, trust officer, assistant trust officer or assistant controller assigned to the Corporate Trust Office, or any other officer 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, any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject, and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and any statute successor thereto, in each case as amended
from time to time.
“Security Register” and “Security Registrar” have the respective meanings
specified in Section 3.5.
“Senior Debt” means any Indebtedness of the Company permitted under the terms of this Indenture, unless the instrument
under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Securities. Notwithstanding the foregoing, “Senior Debt” will not include: (i) Equity Interests; (ii) any liability for
federal, state, local or other taxes due or owed by the Company; (iii) any Indebtedness of the Company to any of its Subsidiaries or Affiliates; (iv) any trade payables; or (v) any Indebtedness that is incurred in violation of this Indenture.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any Person a majority of the combined voting power of the total outstanding ownership interests in
which is, at the time of determination, beneficially owned or held, directly or indirectly, by the Company or one or more other Subsidiaries. For this purpose,
6
“voting power” means power to vote in an ordinary election of directors (or, in the case of a Person that is not a corporation, ordinarily to appoint or approve the appointment of
Persons holding similar positions), whether at all times or only as long as no senior class of ownership interests has such voting power by reason of any contingency.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, 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.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this
instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“Uniform Commercial Code” means the Uniform Commercial Code in effect in the State of New York, as amended from time to
time.
“U.S. Government Obligation” has the meaning specified in Section 12.4.
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title “vice president.”
Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; provided, however, that no such opinion shall be required in connection with the issuance of Securities that are part of any series as to which such an opinion has been previously furnished. Each such certificate or opinion shall be given in
the form of an Officer’s Certificate, if to be given by an Officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
7
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representation by, counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company,
unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.4 Acts of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or agents duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, (a) a Holder, including a Depositary or its nominee
that is a Holder of a Global Security, may give, make or take, by an agent or agents duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted in or pursuant to this
Indenture to be given, made or taken by Holders, and a Depositary or its nominee that is a Holder of a Global Security may duly appoint in writing as its agent or agents members of, or participants in, such Depositary holding interests in such Global
Security in the records of such Depositary; and (b) with respect to any Global Security the Depositary for which is The Depository Trust Company (“DTC”), any consent or other action given, made or taken by an
“agent member” of DTC by electronic means in accordance with the Applicable Procedures of, and pursuant to authorization by, DTC shall be deemed to constitute the “Act” of the Holder of such Global Security, and such Act shall be deemed to have been
delivered to the Company and the Trustee upon the delivery by DTC of an “agent’s message” or other notice of such consent or other action having been so given, made or taken in accordance with the Applicable Procedures of DTC.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit shall
8
also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also
be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving, making or taking of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to give, make or take the relevant action, whether or not such Holders remain Holders after such record date; provided,
however, that no such action shall be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.5 and Section 1.6.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving,
making or taking of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.11, in each case
with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to give, make or take such notice,
declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, however, that no such action shall be effective
hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of
9
Outstanding Securities of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the
Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in
Section 1.5 and Section 1.6.
With respect to any record date set pursuant to this Section, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date to an earlier day
as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to give, make or take any action hereunder with regard to any particular Security may do so, in person
or by an agent duly appointed in writing, with regard to all or any part of the principal amount of such Security.
Section 1.5 Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing (which may be by facsimile or electronic transmission) to or with the Trustee at _______________________________________, Attention: _______________, facsimile: _______________ or any other address previously furnished in writing to
the Company and the Holders by the Trustee or (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first- class postage prepaid, to the
Company at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if delivered electronically in accordance with the Applicable Procedures or in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
10
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for
such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
Section 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 1.10 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 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, the holders of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture, except as may otherwise be provided pursuant to Section
3.1 with respect to any Securities of a particular series or under this Indenture with respect to such Securities.
Section 1.12 Governing Law. This Indenture and the Securities and the rights and obligations of the parties hereto and
thereto, including the interpretation, construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the State of New York, without regard to conflicts of laws principles thereof.
Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Maturity of any Security, or
any date on which a Holder has the right to convert his Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any), or conversion of such Security need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Maturity, or on such date for conversion, as the case may be.
Section 1.14 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other
indenture, loan or other agreement of the Company or any Subsidiaries of any thereof or of any other Person. Any such indenture, loan or other agreement may not be used to interpret this Indenture.
11
Section 1.15 No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive
liabilities under the federal securities laws.
Section 1.16 Language of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver, other
action or Act provided or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Section 1.17 Force Majeure. Subject to Section 6.1, in no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts
that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.18 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE 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.
Section 1.19 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot
Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship
or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Article 2. Security Forms
Section 2.1 Forms Generally. The Securities of each series shall be in such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto and with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities as
evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.
12
Section 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within‑mentioned Indenture.
|
[Trustee], as Trustee
|
||||
|
Dated:
|
By:
|
|||
|
Authorized Signatory
|
||||
Article 3. The Securities
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 and except
for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the
manner in which any payment may be made;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
13
(h) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof, the denominations in which any Securities of the series shall be
issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies or
currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for the
purposes of making payment in the currency of the United States of America and applying the definition of “Outstanding” in Section 1.1;
(l) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies, composite currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies, composite currency, composite currencies or currency units in
which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(m) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 12.2
or Section 12.3 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or both such Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the establishment
of other arrangements) to satisfy the requirements of Section 12.4(a) for defeasance of such Securities and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
14
(p) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security, any addition to, elimination of or other change in the circumstances set forth in
clause (b) of the penultimate paragraph of Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges or transfers of any such Global Security;
(q) any addition to, elimination of or other 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 5.2;
(r) any addition to, elimination of or other change in the covenants set forth in Article 10 which applies to Securities of the
series;
(s) any provisions necessary to permit or facilitate the issuance, payment or conversion of any Securities of the series that may be
converted into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in lieu of, any payment of principal or other amount and whether at the option of the Company or otherwise;
(t) if applicable, that Persons other than those specified in Section 1.11 shall have such benefits, rights, remedies and claims with
respect to any Securities of the series or under this Indenture with respect to such Securities, as and to the extent provided for such Securities;
(u) any change in the actions permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities
of the series, including any such change that permits or requires any or all such actions to be taken by or on behalf of the Holders of any specific Securities of the series rather than or in addition to the Holders of all Securities of the series;
(v) if the Securities of the series are to be guaranteed, the names of the guarantors of the Securities of the series and the terms of
the guarantees of the securities of the series;
(w) whether the Securities of such series are to be secured by any property, assets or other collateral and, if so, the applicable
collateral, any deletions from, or modifications or additions to, the provisions of Article 14 hereof or any other provisions of this Indenture in connection therewith or in connection with any other instrument or agreement entered into in connection
therewith; and
(x) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(g)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any
15
one series need not be issued at the same time and, unless otherwise provided pursuant to this Section 3.1 for any series, after issuance of Securities of such series, such series
may be reopened for issuances of additional Securities of that series.
The terms of any Security of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section
3.1. The matters referenced in any or all of clauses (a) through (x) above may be established and set forth or determined as aforesaid with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust
Indenture Act).
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
Except as may otherwise be established pursuant to Section 3.1, the Securities shall be subordinated in right of payment to Senior Debt as provided in Article 13.
Section 3.2 Denominations. The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 3.1. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000
and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by
its Chairman of the Board, President or a Vice President of the Company (or any other officer of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time). The signature of
any of these officers on the Securities may be manual, facsimile or electronic.
Securities endorsed thereon bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper officers of the Company shall
bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
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 the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Section 2.1 and Section 3.1, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture; and
(b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this Indenture.
16
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of
such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated as of the date of its authentication.
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 the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. 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 which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor
one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. 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 and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at each office or
agency of the Company designated as a Place of Payment pursuant to the first paragraph of Section 10.2 a register (the register maintained in each such office or agency of the Company in a Place of Payment being herein sometimes collectively referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. [Each
17
such office or agency] is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities, which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in whole or in part, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any such
Securities under Section 11.3 and ending at the close of business on the day of such mailing (or during such period as otherwise specified pursuant to Section 3.1 for such Securities), or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as
contemplated by Section 3.1, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary has notified the Company that it (A) is unwilling or unable to continue as
18
Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act, or (ii) the Company has executed and delivered to
the Trustee a Company Order stating that such Global Security shall be exchanged in whole for Securities that are not Global Securities (in which case such exchange shall promptly be effected by the Trustee). If the Company receives a notice of the
kind specified in clause (i) above or has delivered a Company Order of the kind specified in clause (ii) above, it may, in its sole discretion, designate a successor Depositary for such Global Security within 90 days after receiving such notice or
delivery of such order, as the case may be. If the Company designates a successor Depositary as aforesaid, such Global Security shall promptly be exchanged in whole for one or more other Global Securities registered in the name of the successor
Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of clauses (a), (b), (c) and (d) of this provision shall continue to apply thereto.
(c) Subject to clause (b) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.1, any
exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section, Section 3.4, Section 3.6, Section 9.6 or Section 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Every Person who takes or holds any beneficial interest in a Global Security agrees that:
(i) the Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized representative
of such Person;
(ii) such Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those
established by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary;
(iii) the Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit
distributions of principal and interest on the Global Securities to, such Persons in accordance with the Applicable Procedures of the Depositary; and
(iv) none of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.6 Mutilated, Destroyed, Lost and Wrongfully Taken Securities. If (a) any mutilated Security is surrendered to
the Trustee or (b) both (i) there shall be delivered to the Company and the Trustee (A) a claim by a Holder as to the destruction, loss or wrongful taking of any Security of such Holder and a request thereby for a new replacement Security of the same
19
series, and (B) such indemnity bond as may be required by them to save each of them and any agent of either of them harmless and (ii) such other reasonable requirements as may be
imposed by the Company as permitted by Section 8‑405 of the Uniform Commercial Code have been satisfied, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a “protected purchaser” within the meaning of
Section 8‑405 of the Uniform Commercial Code, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or wrongfully taken Security, a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously Outstanding. In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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 relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or wrongfully taken 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.
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 wrongfully taken Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 3.1
with respect to any Securities of a series, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest (or, if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 5:00 P.M. New York City time on such date).
Any interest on any Security of any series which 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 Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest payable on any Securities of a series 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, 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 of such Securities 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
20
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the 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 1.6, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, 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 (b).
(b) The Company may make payment of any Defaulted Interest on any Securities of a series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Except as may otherwise be provided in this Section 3.7 or as contemplated in Section 3.1 with respect to any Securities of a series, the Person to whom interest
shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable.
Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such
additions, changes or omissions as may be provided thereby, to such Security.
Section 3.8 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company and
the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not such Security be
21
overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.9 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and 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 which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, 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. All canceled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 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 CUSIP Numbers. The Company in issuing the Securities may use CUSIP numbers (if then generally in use) and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such CUSIP numbers. The Company shall
promptly notify the Trustee in writing of any change in the CUSIP numbers.
Article 4. Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture. Except as otherwise provided for pursuant to Section 3.1 with
respect to the Securities or any series thereof, this Indenture shall upon Company Request cease to be of further effect with respect to the Securities of any series and any guarantees of such Securities (except as to any surviving rights of
conversion, registration of transfer or exchange of any such Security expressly provided for herein or in the terms of such Security and rights to receive payments of principal of, and premium (if any), and interest on such Securities), and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(a) Either:
(i) all such Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or
wrongfully taken and which have been replaced or paid as provided in Section 3.6, 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 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation
22
(A) have become due and payable by reason of the making of a notice of redemption or otherwise, or
(B) will become due and payable at their Stated Maturity within one year, or
(C) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
and the Company, in the case of (A), (B) or (C) directly above, has deposited or caused to be deposited with the Trustee or Paying Agent as trust funds in trust
for such purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; 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 Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent under Section 6.14, and, if money shall have been deposited with the Trustee pursuant to subclause (a)(i)(B) of this Section with respect to such Securities, and the obligations of
the Trustee under Section 4.2, Section 6.6 and the last paragraph of Section 10.3 with respect to such Securities shall survive such satisfaction and discharge.
Section 4.2 Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 with respect to Securities of any series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 4.1 (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request, to the extent originally deposited by the
Company. The Company may direct by a Company Order the investment of any money deposited with the Trustee pursuant to Section 4.1, without distinction between principal and income, in (a) United States Treasury Securities with a maturity of one year or
less or (b) a money market fund that invests solely in short term United States Treasury Securities and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities or funds meeting the criteria
specified in clause (a) or (b) of this sentence.
Article 5. Remedies
23
Section 5.1 Events of Default. Except as may otherwise be provided pursuant to Section 3.1 for all or any specific
Securities of any series, “Event of Default,” wherever used herein with respect to the Securities of that series, means any one of the following events (whatever the reason for such Event of Default and whether
it shall be occasioned by the provisions of Article 13 or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable (as extended or deferred),
and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, any premium or sinking fund payment, if any, on any Security of that series at its
Maturity; or
(c) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 30% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and requiring it to be remedied within a specified time after receipt of such notice and stating that such notice is a “Notice of Default”
hereunder; or
(d) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive
days (provided that, if any Person becomes the successor to the Company pursuant to Article 8 and such Person is organized and validly existing under the law of a jurisdiction outside the United States, each reference in this clause (d) to an
applicable Federal or State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor to the Company hereunder and is so organized and
existing); or
(e) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by
24
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, 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 such action (provided
that, if any Person becomes the successor to the Company pursuant to Article 8 and such Person is organized and validly existing under the law of a jurisdiction outside the United States, each reference in this clause (e) to an applicable Federal or
State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor to the Company hereunder and is so organized and existing); or
(f) any other Event of Default provided with respect to Securities of that series in accordance with Section 3.1.
Section 5.2 Acceleration of Maturity; Rescission and Annulment. Except as may otherwise be provided pursuant to Section
3.1 for all or any specific Securities of any series, if an Event of Default (other than an Event of Default specified in Section 5.1(d) or Section 5.1(e)) with respect to Securities of that series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 30% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, in the case of any Security of that series
which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) 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 declaration such principal amount (or specified amount) shall become immediately due and payable. Except as may otherwise be provided pursuant to Section 3.1 for all or any specific Securities of any series, if an
Event of Default specified in Section 5.1(d) or Section 5.1(e) with respect to Securities of that series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in the case of any Security of that series which
specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
Except as may otherwise be provided pursuant to Section 3.1 for all or any specific Securities of any series, at any time after such a declaration of acceleration
with respect to Securities of that series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(i) all overdue interest on all Securities of that series;
(ii) 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;
(iii) 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
25
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events 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 declaration of acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. The Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
26
provided, however, that 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 5.5 Trustee May Enforce Claims without Possession of Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.7;
Second: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the remainder, if any, to the Company or to whomsoever may be lawfully entitled to receive
the same as a court of competent jurisdiction may direct.
Section 5.7 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the losses, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60‑day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
27
Section 5.8 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.9 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.11 Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided
that
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability.
Section 5.12 Waiver of Past Defaults. Except as may otherwise be provided pursuant to Section 3.1 for all or any specific
Securities of any series, the Holders of not less than a majority in principal amount (including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Outstanding Securities of any series to be
affected under this Indenture may by notice to the Trustee on behalf of the Holders of all the Securities of such series waive any existing default and its consequences hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of or any premium or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
28
Upon any such waiver with respect to any series, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
with respect to such series for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. A waiver of any past default and its consequences given by or on behalf of any
Holder of Securities in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such purchase, tender or exchange.
Section 5.13 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorneys’
fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company or the Trustee or, if applicable, in any suit for the enforcement of the right to convert any Security in accordance with its terms.
Section 5.14 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article 6. The Trustee
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and as are
provided by the Trust Indenture Act, and, except for implied covenants or obligations under the Trust Indenture Act, no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same
29
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.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of the first paragraph of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 5.11, relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(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.
Section 6.2 Notice of Defaults. If a default occurs hereunder with respect to Securities of any series, the Trustee shall
give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of
any default of the character specified in Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.3 Certain Rights of Trustee. Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any
30
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be entitled to receive and may, in the absence of bad faith on its
part, conclusively rely upon, an Officer’s Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder and shall not be responsible for the supervision of officers and employees of
such agents or attorneys;
(h) the Trustee may request that the Company deliver an Officer’s 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 Officer’s 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;
(i) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(k) the rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be
31
taken as the statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.8 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the Company and Trustee shall agree in writing for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee and its officers, directors, agents and employees for, and to hold it
harmless against, any and all losses, liabilities, damages, claims or expenses including taxes (other than taxes based upon, measured by or determined by the earnings or income of the Trustee) incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section the Trustee shall have a lien prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on Securities.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1(d) or Section 5.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal
or State bankruptcy, insolvency or other similar law.
32
The provisions of this Section shall survive the termination of this Indenture.
Section 6.8 Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such conflict of interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) trustee hereunder
with respect to the Securities of each series, which may be trustee hereunder for Securities of one or more other series. Each trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and
surplus of at least $50,000,000 and has its Corporate Trust Office in the continental United States of America. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 60 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of a notice of removal
pursuant to this paragraph, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) 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
33
officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company, by a Board Resolution, may remove the Trustee with respect to all Securities, or subject to Section 5.13, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of itself 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.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
34
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
35
Section 6.14 Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect
to any series of Securities which shall be authorized to act on behalf of the Trustee to authenticate the Securities of such series issued upon original issue and upon exchange, registration of transfer, partial conversion or partial redemption or
pursuant to Section 3.6, and Securities of such series 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. Wherever reference is made in
this Indenture to the authentication and delivery of Securities of such series by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent so appointed with respect to such series and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent so appointed with respect to such series. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee, the Company, the Authenticating Agent or such successor
corporation. An Authenticating Agent may resign at any time by giving 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, the Trustee
may appoint a successor Authenticating Agent with respect to any series of Securities which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of such series in the manner provided in Section 1.6.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section with respect to Securities of any series, the Securities of such series may have endorsed thereon, in addition
to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
36
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
|
[Trustee], as Trustee
|
||
|
By:
|
||
|
As Authenticating Agent
|
||
|
By:
|
||
|
Authorized Signatory
|
||
Article 7. Holders’ Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not later than ____________________ and ____________________ in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of the immediately preceding ___________________ or ____________________ as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders. The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights
and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither of the Company nor the Trustee nor any agent
of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than ____________________ and shall be dated as
of ____________________ in each calendar year, commencing in 202__.
37
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are
listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange and of any delisting thereof.
Section 7.4 Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, if any, at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually filed with the Commission. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the compliance by
the Company with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Article 8. Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into
any other Person or sell, convey, transfer or lease all or substantially all its properties and assets to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
(a) in case the Company shall consolidate with or merge into another Person or sell, convey, transfer or lease all or substantially
all its properties and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale, conveyance or transfer, or which leases, all or substantially all the properties and assets
of the Company shall be organized and validly existing under the laws of the United States, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably 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 and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its terms;
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2 Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any sale, conveyance, transfer or lease of all or
38
substantially all the properties and assets of the Company in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or
to which such sale, conveyance, transfer or 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 thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Article 9. Supplemental Indentures
Section 9.1 Supplemental Indentures without Consent of Holders. Except as may otherwise be provided pursuant to Section
3.1 for all or any specific Securities of any series, without the consent of any Holders, the Company, when authorized by a Board Resolution, 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 of the following purposes:
(a) to cure any ambiguity or omission, to correct or supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; or
(b) to comply with Article 8; or
(c) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities, as the case may be; or
(d) to add to the covenants of the Company for the benefit of the Holders of all or any Securities of any series (and if such
covenants are to be for the benefit of less than all Securities of such series, stating that such covenants are expressly being included solely for the benefit of such Securities within such series) or to surrender any right or power herein conferred
upon the Company with regard to all or any Securities of any series (and if any such surrender is to be made with regard to less than all Securities of such series, stating that such surrender is expressly being made solely with regard to such
Securities within such series); or
(e) to add any additional Events of Default for the benefit of the Holders of all or any Securities of any series (and if such
additional Events of Default are to be for the benefit of less than all Securities of such series, stating that such additional Events of Default are expressly being included solely for the benefit of such Securities within such series); or
(f) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in definitive form, or to permit or facilitate the issuance of Securities in uncertificated form; or
(g) to add to, change or eliminate any of the provisions of this Indenture in respect of all or any Securities of any series (and if
such addition, change or elimination is to apply with respect to less than all Securities of such series stating that it is expressly being made to apply solely with respect to such Securities within such series), provided that any such addition,
change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security
with
39
respect to such provision, or (ii) shall become effective only when there is no such Security Outstanding; or
(h) to secure the Securities; or
(i) to establish the form or terms of all or any Securities of any series as permitted by Section 2.1 and Section 3.1; or
(j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(k) to add to or change any of the provisions of this Indenture with respect to any Securities that by their terms may be converted
into securities or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such Securities; or
(l) to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture
Act; or
(m) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Securities; provided, however, that (i) compliance with this Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other
applicable securities law, and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Securities; or
(n) to add any Person as a guarantor under this Indenture, to add guarantees in respect of any Securities under this Indenture, or to
evidence the release and discharge of any guarantor from its obligation under its guarantees of any Securities and its obligations under this Indenture in respect of any Securities in accordance with the terms of this Indentures; or
(o) to make any other change to this Indenture that does not adversely affect the rights of the Holders of Securities of any series in
any material respect.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.2 Supplemental Indentures with Consent of Holders. Except as may otherwise be provided pursuant to Section 3.1
for all or any specific Securities of any series, with the consent of the Holders of a majority in principal amount (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Outstanding
Securities of all series affected by such supplemental indenture (considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different series and, with respect to any series, potentially
comprising fewer than all the Securities of such series), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures
40
supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities),
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or
(b) permit the Company to redeem any Security if, absent such supplemental indenture, the Company would not be permitted to do so, or
(c) change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable,
or
(d) change the ranking or priority of any Security that would adversely affect the Holders, or
(e) impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(f) reduce the percentage in principal amount of the Outstanding Securities of any one or more series (considered separately or
together as one class, as applicable, and whether comprising the same or different series or less than all the Securities of a series), the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(g) modify any of the provisions of this Section, Section 5.12 or Section 10.6, 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 10.6, or the deletion of this proviso, in accordance with the
requirements of Section 6.11 and Section 9.1(j).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of
one or more particular Securities or series of Securities, or which modifies the rights of the Holders of such Securities or series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of any other Securities or of any other series, as applicable. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A consent to any indenture supplemental hereto by or on behalf of any Holder of Securities given in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered
invalid by such purchase, tender or exchange.
Section 9.3 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
41
modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in conclusively
relying upon, an Opinion of Counsel and Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel shall be required for the Trustee to execute any amendment or supplement adding a guarantee
under this Indenture.
Section 9.4 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.5 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
Section 9.7 Subordination Unimpaired. No supplemental indenture shall adversely affect the interests of any holder of
Senior Debt then outstanding under Article 13 in any material respect unless each holder of Senior Debt so affected (or the group or representative thereof authorized or required to consent thereto pursuant to the instrument creating or evidencing, or
pursuant to which there is outstanding, such Senior Debt) consents to such supplemental indenture in writing.
Article 10. Covenants
Section 10.1 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion
and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. 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 its agent to receive all such presentations, surrenders, notices and demands.
42
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.1, the Corporate Trust Office
of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall
be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 10.3 Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to 11:00 A.M., New York City time, on each due date
of the principal of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 12.4(a), cause such trustee to deposit) with a Paying Agent a sum sufficient
to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent, and (b) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on
any Security of any series
43
and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may, at the direction and expense of the Company, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the city of New York,
notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4 Corporate Existence. Subject to Article 8, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 10.5 Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.6 Waiver of Certain Covenants. Except as otherwise provided pursuant to Section 3.1 for all or any Securities
of any series, the Company may, with respect to all or any Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in Section 10.4 and Section 10.5 or in any covenant provided pursuant to
Section 3.1(r) or Section 9.1(d) for the benefit of the Holders of such series if, before the time for such compliance, the Holders of a majority in principal amount (including waivers obtained in connection with a purchase of, or tender offer or
exchange offer for, Securities) of all Outstanding Securities affected by such waiver (considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different series and, with respect to any
particular series, potentially comprising fewer than all the Securities of such series) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect. A waiver of compliance given by or on behalf of any Holder of Securities in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered
invalid by such purchase, tender or exchange.
Article 11. Redemption of Securities
Section 11.1 Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall
be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for such Securities) in accordance with this Article.
44
Section 11.2 Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be
established in or pursuant to a Board Resolution or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any
such redemption affecting only a single Security), the Company shall, not less than 30 days nor more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company that is subject to a condition specified in the terms of the Securities of the series to be redeemed, the Company
shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 11.3 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 40 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of
the principal amount of any Security of such series, 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. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 40 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as it may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be
redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such
Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
45
Section 11.4 Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 3.1 for the relevant Securities), to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,
(d) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price,
(f) for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate, and the place or places where such Securities may be surrendered for conversion,
(g) that the redemption is for a sinking fund, if such is the case, and
(h) if the redemption is conditioned upon the satisfaction of one or more conditions, a statement to such effect and identifying the
conditions.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price. Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 3.7 or in the terms of such Security) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such trust.
46
Section 11.6 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, subject to the satisfaction of any conditions precedent provided in such notice, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) 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, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or 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 and of like tenor, 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.
Article 12. Defeasance and Covenant Defeasance
Section 12.1 Company’s Option to Effect Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to
Section 3.1(o), the Securities or any series of Securities shall be subject to defeasance or covenant defeasance pursuant to Section 12.2 or Section 12.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article. The Company may elect, at its option, at any time, to have Section 12.2 or Section 12.3 applied to any Securities or any series of Securities so subject to defeasance or covenant
defeasance. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.1 for such Securities.
Section 12.2 Defeasance and Discharge. Upon the Company’s exercise of its option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in
Section 12.4 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other respective obligations under such Securities and this Indenture with respect to such Securities (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 12.4(a) and as more fully set forth in such
47
Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (b) the obligations of the Company with respect to such
Securities under Section 3.4, Section 3.5, Section 3.6, Section 10.4 and Section 10.5, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and (d) this Article. Subject to compliance with this Article, the Company may
exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 12.3 applied to such Securities.
Section 12.3 Covenant Defeasance. Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Section 10.4 and Section 10.5 and any covenants provided pursuant to Section 3.1(r) or Section 9.1(d) for the benefit of the
Holders of such Securities, and (b) the occurrence of any event specified in Section 5.1(c) (or with respect to any such covenants provided pursuant to Section 3.1(r), Section 9.1(d) or Section 5.1(f)) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 12.4 are satisfied (hereinafter called “Covenant Defeasance”). For this
purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so
specified, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document), but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 12.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of
Section 12.2 or Section 12.3 to any Securities or any series of Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to,
the benefits of the Holders of such Securities, (i) money in an amount, or (ii) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (iii) such other obligations or arrangements as may be specified as contemplated by Section 3.1 with respect to such Securities, or (iv) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S.
Government Obligation” means (A) any security which is (1) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (2) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (1)
or (2), is not callable
48
or redeemable at the option of the issuer thereof, and (B) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in clause (A) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, 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 principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 12.2 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(c) In the event of an election to have Section 12.3 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or
any other securities (other than such an event or Event of Default solely with respect to such securities resulting from the borrowing of funds to be applied to such deposit) shall have occurred and be continuing at the time of such deposit.
(f) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is bound.
(g) The Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of such Securities over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company.
49
(h) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject to
the provisions of the last paragraph of Section 10.3, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 12.6, the Trustee
and any such other qualifying trustee are referred to collectively as the “Trustee”) pursuant to Section 12.4 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent or any Subsidiary or Affiliate of the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money and U.S. Government Obligations so held in trust need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 12.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 12.4 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 12.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the respective obligations under this Indenture and such Securities
from which the Company has been discharged or released pursuant to Section 12.2 or Section 12.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 12.5 with respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
50
Article 13. Subordination of Securities
Section 13.1 Securities Subordinate to Senior Debt. The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article 13, the indebtedness represented by the Securities and the payment of the principal of (and premium, if any) and interest
on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt.
Notwithstanding the foregoing, if a deposit referred to in Section 12.4(a) is made pursuant to Section 12.2 or Section 12.3 with respect to any Securities (and
provided all other conditions set out in Section 12.2 or Section 12.3, as applicable, shall have been satisfied with respect to such Securities), then no money or U.S. Government Obligations so deposited, and no proceeds thereon, will be subject to any
rights of holders of Senior Debt, including any such rights arising under this Article 13.
Section 13.2 Payment Over of Proceeds upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, (b) any liquidation, dissolution or other winding up of
the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company, then and in any such event the
holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Debt (including any interest accruing thereon after the commencement of any such case or proceeding), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or
interest on the Securities, and to that end, the holders of Senior Debt shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, before all Senior Debt is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event, such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Securities, or any taxes that ought to have been withheld or deducted from any such payment
51
or distribution that have been remitted to the relevant taxing authority, shall not be considered to be an amount that the Trustee or the Holder of any Security receives for
purposes of this Section.
For purposes of this Article only, the words “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation or other entity, provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Debt which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. The consolidation of the Company with, or the merger of the Company into, or the sale, conveyance, transfer or lease by the
Company of all or substantially all its properties and assets to, another Person upon the terms and conditions set forth in Article 8, or the liquidation or dissolution of the Company following any such sale, conveyance or transfer, shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, conveyance, transfer or lease all or substantially all of such properties and assets, as the case may be, shall, as a part of such consolidation, merger, sale, conveyance, transfer or lease,
comply with the conditions set forth in Article 8.
Section 13.3 Prior Payment to Senior Debt upon Acceleration of Securities. In the event that any Securities are declared
due and payable before their Stated Maturity, then and in such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Debt or provision shall be made for such
payment in cash, before the Holders of the Securities are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities)
by the Company on account of the principal of (or premium, if any) or interest on the Securities or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the
Company.
Section 13.4 No Payment When Senior Debt in Default. Subject to the last paragraph of this Section:
(a) (i) in the event and during the continuation of any default in the payment of principal of (or premium, if any) or interest on any
Senior Debt beyond any applicable grace period with respect thereto, or (ii) in the event that any event of default with respect to any Senior Debt shall have occurred and be continuing permitting the holders of such Senior Debt (or a trustee on behalf
of the holders thereof) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable, whether or not such Senior Debt has been so accelerated (provided that, in the case of clause (i) or clause
(ii), if such default in payment or event of default shall have been cured or waived or shall have ceased to exist and any such declaration of acceleration shall have been rescinded or annulled, then such default in payment or event of default, as the
case may be, shall be deemed not to have occurred for the purposes of this Section 13.4), or
52
(b) in the event that any judicial proceeding shall be pending with respect to any such default in payment or event of default that
shall be deemed to have occurred for the purpose of this Section 13.4;
then no payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of
the Securities) shall be made by the Company on account of principal of (or premium, if any) or interest on the Securities or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the provisions of
this Section 13.4, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
No default in payment or event of default with respect to any Senior Debt shall be deemed to be a default in payment or event of default of the kind specified in
clause (a)(i) or (a)(ii) of this Section, and no judicial proceeding with respect to any such default in payment or event of default shall be deemed to be a judicial proceeding of the kind specified in clause (b) of this Section, if (x) the Company
shall be disputing the occurrence or continuation of such default in payment or event of default, or any obligation purportedly giving rise to such default in payment or event of default, and (y) no final judgment holding that such default in payment
or event of default has occurred and is continuing shall have been issued. For this purpose, a “final judgment” means a judgment that is issued by a court having jurisdiction over the Company or its property, is
binding on the Company or its property, is in full force and effect and is not subject to judicial appeal or review (including because the time within which a party may seek appeal or review has expired), provided that, if any such judgment has been
issued but is subject to judicial appeal or review, it shall nevertheless be deemed to be a final judgment unless the Company shall in good faith be prosecuting such appeal or a proceeding for such review and shall have obtained a stay of execution
pending such appeal or review. Notwithstanding the foregoing, this paragraph shall not apply to any default in payment or event of default with respect to any Senior Debt as to which the Company has waived the application of this paragraph in the
instrument evidencing such Senior Debt or by which such Senior Debt is created, incurred, assumed or guaranteed by the Company.
Section 13.5 Payment Permitted in Certain Situations
. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 13.2 or under the conditions described in
Section 13.3 or Section 13.4, from making payments at any time of or on account of the principal of (and premium, if any) or interest on the Securities, or on account of the purchase or other acquisition of Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and premium, if any) or interest on the Securities or the retention of such payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article.
Section 13.6 Subrogation to Rights of Holders of Senior Debt
. Subject to the payment in full of all Senior Debt or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of
indebtedness of
53
the Company which by its express terms is subordinated to Indebtedness of the Company to substantially the same extent as the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation) to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to the Senior Debt until the principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article 13, and no payments over pursuant to the provisions of this Article 13 to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Debt.
Section 13.7 Provisions Solely to Define Relative Rights. The provisions of this Article 13 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 Senior Debt on the other hand. Nothing contained in this Article 13 or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional (and which, subject to the rights under this Article 13 of
the holders of Senior Debt, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become
due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than the holders of Senior Debt; or (c) 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 13 of the holders of Senior Debt to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 13.8 Trustee to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 13 and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 13.9 No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the
Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of
the Securities to the holders of Senior Debt do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
54
Senior Debt; (c) release any Person liable in any manner for the collection of Senior Debt; and (d) exercise or refrain from exercising any rights against the Company and any other
Person.
Section 13.10 Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to the
Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof from the Company or a holder of Senior Debt or from any
trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 6.1, 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 Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee therefor). 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 Debt to participate in any payment or distribution pursuant to this Article 13, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Debt 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 13, 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.
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets
of the Company referred to in this Article 13, the Trustee, subject to the provisions of Section 6.1, and the Holders of the Securities shall be entitled to 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, receiver, liquidating trustee, custodian, 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
Debt 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 13.
Section 13.12 Trustee Not Fiduciary For Holders of Senior Debt. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt and shall not be liable to any such holders or creditors if it shall in good faith pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article 13 or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this
Article 13 and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against the Trustee.
Section 13.13 Rights of Trustee as Holder of Senior Debt; Preservation of Trustees Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article 13 with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
55
Nothing in this Article 13 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.7.
Section 13.14 Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article 13 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this Article 13 in addition to or in place of the Trustee.
Article 14. Security
Section 14.1 Security. If so provided pursuant to Section 3.1 with respect to the Securities of any series, the
Securities of such series may be secured by such property, assets or other collateral as may be specified in or pursuant to Section 3.1. Any and all terms and provisions applicable to the security for the Securities of such series shall also be
provided in or pursuant to Section 3.1, which may include, without limitation, provisions for the execution and delivery of such security agreements, pledge agreements, collateral agreements and other similar or related agreements as the Company may
elect and which may provide for the Trustee to act as collateral agent or in a similar or other capacity. The Trustee shall comply with Sections 313(a)(5) and (6) and 313(b)(1) of the Trust Indenture Act, and the Company shall comply with Sections
314(b), 314(c) and 314(d) of the Trust Indenture Act, in each case, in respect of any secured Securities that may be outstanding hereunder from time to time.
* * * * *
This instrument 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. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may
be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
56
In Witness Whereof, the parties hereto have caused this Subordinated Indenture to be duly executed as of the day
and year first above written.
|
Horizon Bancorp, Inc.
|
|
|
By: ______________________________
|
|
|
Printed: __________________________
|
|
|
Title: _____________________________
|
|
|
[Trustee], as Trustee
|
|
|
By: ______________________________
|
|
|
Printed: __________________________
|
|
|
Title: _____________________________
|
Exhibit 5.1
 |
11 S. Meridian Street
Indianapolis, IN 46204-3535 U.S.A.
(317) 236-1313 Fax (317) 231-7433 www.btlaw.com
|
September 23, 2024
Board of Directors
Horizon Bancorp, Inc.
515 Franklin Street
Michigan City, Indiana 46360
Re: Registration Statement of Horizon Bancorp, Inc. on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Horizon Bancorp, Inc., an Indiana corporation (the “Company”), in connection with its
filing of a Registration Statement on Form S-3 (the “Registration Statement”), including the prospectus constituting a part thereof (the “Prospectus”), to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Act”). This opinion letter is being furnished to the Company in accordance with the requirements of Item 601(b)(5) under Regulation S-K.
The Registration Statement relates to the possible offerings by the Company, from time to time, of up to $250,000,000 aggregate amount of the following
securities:
| (i) |
common stock, no par value, of the Company (“Common Stock”);
|
| (ii) |
preferred stock of the Company (“Preferred Stock”), which may be issued in the form of depositary shares (“Depositary Shares”) evidenced by depositary receipts (“Depositary Receipts”);
|
| (iii) |
senior debt securities (“Senior Debt Securities”) and subordinated debt securities (“Subordinated Debt Securities”) of the Company (collectively, “Debt Securities”);
|
| (iv) |
warrants to purchase Common Stock, Preferred Stock, Debt Securities, or Depositary Shares of the Company (“Warrants”);
|
| (v) |
rights to purchase Common Stock, Preferred Stock, Debt Securities, or Depositary Shares of the Company (“Rights”);
|
| (vi) |
units (“Units”), which are comprised of one or more of the Securities (as defined below) in any combination; and
|
| (vii) |
contracts to purchase or sell Common Stock, Preferred Stock, Debt Securities or Depositary Shares of the Company (“Purchase Contracts”).
|
Horizon Bancorp, Inc.
September 23, 2024
Page 2
The Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Rights, Units, and Purchase
Contracts are collectively referred to herein as the “Securities.” The Registration Statement, and the Prospectus included therein, provide that the Securities may be offered separately, or together, in separate series, in amounts, at prices and on
terms to be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
In connection with this opinion, we have examined: (i) the Registration Statement, including the prospectus and the
exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the form of indenture, as filed with the Commission for the respective Debt Securities (including, as exhibits, proposed forms of
instruments thereunder), providing for the issuance of the respective Debt Securities from time to time on the terms of such indenture (the “Indenture”); (iii) the Company’s Articles of Incorporation, as amended and restated; (iv) the Company’s
Bylaws, as amended and restated; (v) corporate proceedings of the Company relating to the Registration Statement and the transactions contemplated thereby; and (vi) such other agreements, proceedings, documents and records and such matters of law
as we have deemed necessary or appropriate to enable us to render this opinion. As to certain facts material to our opinion, we have relied, to the extent we deem such reliance proper, upon certificates of public officials and officers of the
Company.
In rendering this opinion, we have assumed that, upon the issuance of any of the Common Stock and/or Preferred
Stock that may be offered and sold under the Registration Statement, (i) the total number of issued and outstanding Common Stock and/or Preferred Stock (as the case may be) after giving effect to such issuance would not exceed the total number of
Common Stock and/or Preferred Stock (as the case may be) that the Company is then authorized to issue under its articles of incorporation, as they may then be amended, and (ii) with respect to any issuance of Preferred Stock, the total number of
issued and outstanding shares of the applicable series of Preferred Stock (after giving effect to such issuance) would not exceed the total number of shares of such series of Preferred Stock that the Company is then authorized to issue under its
articles of incorporation, as they may then be amended. We have further assumed that each Warrant Agreement, Deposit Agreement, Purchase Contract, Unit Document, Rights Agreement, and the Indenture, as such terms are defined in this letter, and
each indenture supplement to the Indenture, will be governed by the laws of the State of New York.
We have also assumed the genuineness of signatures, the authenticity, accuracy and completeness of all documents,
records and certificates submitted to us as originals, the conformity to the originals of all documents, records and certificates submitted to us as copies and the authenticity, accuracy and completeness of the originals of all documents, records
and certificates submitted to us as copies.
Based on the foregoing, we are of the opinion that:
| 1. |
except with respect to Common Stock that is issuable upon (x) the conversion or exchange of Securities that are by their terms convertible or exchangeable (“Convertible Securities”) or (y) the settlement of Purchase Contracts or Units,
when (a) all necessary corporate action to authorize and approve the issuance of the Common Stock has been taken and (b) the Common Stock is issued, sold and delivered in the manner contemplated by the Registration Statement against
delivery of applicable consideration, the Common Stock will be validly issued, fully paid and nonassessable;
|
| 2. |
with respect to Common Stock that is issuable upon the conversion or exchange of Convertible Securities that are by their terms convertible or exchangeable into Common Stock, when (a) all necessary corporate action to authorize and
approve the issuance of the Common Stock upon conversion or exchange of the Convertible Securities has been taken, (b) such Convertible Securities have been converted or exchanged in accordance with their terms, and (c) the Common Stock is
issued and delivered as contemplated thereby, such Common Stock will be validly issued, fully paid and nonassessable;
|
Horizon Bancorp, Inc.
September 23, 2024
Page 3
| 3. |
with respect to Common Stock that is issuable upon settlement of Purchase Contracts or Units comprised of Common Stock and any one or more other Securities, when (a) all necessary corporate action to authorize and approve the issuance of
the Common Stock upon settlement of the Purchase Contracts or Units has been taken, (b) such Purchase Contracts or Units have been settled in accordance with their terms and (c) the Common Stock is issued and delivered as contemplated
thereby, such Common Stock will be validly issued, fully paid and nonassessable;
|
| 4. |
except with respect to Preferred Stock that is issuable upon (x) the conversion or exchange of Convertible Securities or (y) the settlement of Purchase Contracts or Units, when (a) all necessary corporate action has been taken approving
and authorizing the issuance of the Preferred Stock (including the establishment of the terms thereof), (b) the applicable articles of amendment have been duly filed with the Secretary of State of the State of Indiana and (c) the Preferred
Stock is issued, sold and delivered in the manner contemplated by the Registration Statement against delivery of the applicable consideration, the Preferred Stock will be validly issued, fully paid and nonassessable;
|
| 5. |
with respect to Preferred Stock that is issuable upon the conversion of Convertible Securities that are by their terms convertible or exchangeable, when (a) all necessary corporate action has been taken approving and authorizing the
issuance of the Preferred Stock (including the establishment of the terms thereof) upon conversion or exchange of Convertible Securities, (b) the applicable articles of amendment have been duly filed with the Secretary of State of the State
of Indiana and (c) such Convertible Securities have been converted or exchanged in accordance with their terms, such Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable;
|
| 6. |
with respect to Preferred Stock that is issuable upon settlement of Purchase Contracts or Units that are comprised of Preferred Stock and any one or more other Securities, when (a) all necessary corporate action has been taken approving
and authorizing the issuance of the Preferred Stock (including the establishment of the terms thereof) upon settlement of Purchase Contracts or Units, (b) the applicable articles of amendment have been duly filed with the Secretary of State
of the State of Indiana and (c) such Purchase Contracts or Units have been settled in accordance with their terms, such Preferred Stock will be validly issued, fully paid and nonassessable;
|
| 7. |
when (a) the terms of the applicable Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture and any supplement thereto, (b) the Indenture and any supplement thereto have been duly
authorized, executed and delivered between the Company and an eligible Trustee, (c) such Debt Securities have been duly executed, authenticated, and delivered in accordance with the Indenture and any supplement thereto, and (d) such Debt
Securities have been issued and sold in the manner contemplated by the Registration Statement against delivery of applicable consideration, the Debt Securities so issued (including any Debt Securities issued in settlement of Purchase
Contracts or Units) will constitute valid and binding obligations of the Company;
|
Horizon Bancorp, Inc.
September 23, 2024
Page 4
| 8. |
when (a) all necessary corporate action to approve the execution and delivery of a deposit agreement relating to the Depositary Shares (the “Deposit Agreement”) with a bank or trust company selected by the Company to act as depositary
thereunder (the “Depositary”), (b) the Deposit Agreement has been duly authorized, executed and delivered by each of the parties thereto, (c) the terms of the Depositary Shares and of their issuance and sale have been duly established in
conformity with the Deposit Agreement, (d) the Preferred Stock represented by the Depositary Shares has been duly authorized, validly issued, fully paid and delivered to the Depositary, and (e) the Depositary Receipts evidencing the
Depositary Shares have been executed and countersigned in accordance with the Depositary Agreement and issued against deposit of the Preferred Stock as contemplated by the Registration Statement and the Depositary Agreement, the Depositary
Shares will constitute valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in the Depositary Receipts and the Depositary Agreement;
|
| 9. |
when (a) all necessary corporate action to approve and authorize the execution and delivery of a warrant agreement that conforms in all material respects to the description thereof in the Registration Statement (the “Warrant Agreement”)
has been taken, (b) such Warrant Agreement has been duly authorized, executed and delivered by each of the parties thereto, (c) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the
Warrant Agreement, and (d) the Warrants have been duly executed and countersigned in accordance with the Warrant Agreement and issued and sold, against delivery of the applicable consideration, the Warrants will constitute valid and binding
obligations of the Company;
|
| 10. |
when (a) all necessary corporate action to approve and authorize the form, terms, issuance and delivery of any agreement relating to the Rights (the “Rights Agreement”), (b) such Rights Agreement has been duly authorized, executed and
delivered by the Company and the rights agent, and (c) the instruments representing such Rights have been duly authenticated by the rights agent and duly executed and delivered by the Company against payment therefor in accordance with the
terms of the Rights Agreement and as contemplated by the Registration Statement, such Rights will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms;
|
| 11. |
when (a) all necessary corporate action to approve and authorize the issuance of Units, including the component Securities contained therein, and the documents evidencing and used in connection with the issuance and sale of Units, which
documents conform in all material respects to the description thereof in the Registration Statement (the “Unit Documents”) has been taken, (b) the Units and the Unit Documents have been executed and delivered by each of the parties thereto
in accordance with their respective terms and provisions, (c) the terms of the Units and of their issuance and sale have been duly established in conformity with the Unit Documents, and (d) the Units have been issued and sold as
contemplated in the Unit Documents, against delivery of the applicable consideration, the Units will constitute valid and binding obligations of the Company; and
|
| 12. |
when (a) all necessary corporate action to approve and authorize the execution and delivery of Purchase Contracts that conform in all material respects to the description thereof in the Registration Statement has been taken, (b) such
Purchase Contracts have been duly authorized, executed and delivered by each of the parties thereto, (c) the terms of such Purchase Contracts and the underlying Securities relating thereto and of their issuance and sale have been duly
established, and (d) such Purchase Contracts have been issued and sold, against delivery of the applicable consideration, the Purchase Contracts will constitute valid and binding obligations of the Company.
|
Horizon Bancorp, Inc.
September 23, 2024
Page 5
Insofar as the opinions expressed above relate to the validity, binding effect or enforceability of any agreement
or obligation of the Company, such opinions are subject to applicable bankruptcy, reorganization, insolvency, receivership, conservatorship, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter
in effect, and to equitable principles that may limit the right to specific enforcement of remedies and to the application of principles of public policy.
Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes in law or fact
(or the effect thereof on the opinions expressed herein) that hereafter may come to our attention.
The foregoing opinion is limited to the application of the internal laws of the State of Indiana, the internal laws
of the State of New York, and applicable federal law, and no opinion is expressed herein as to any matter governed by the laws of any other jurisdiction. The only opinions rendered by us consist of those matters set forth in the paragraphs
numbered 1 through 12 above, and no opinion may be implied or inferred beyond the opinions expressly stated.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and
to the use of our name therein and in the related Prospectus and any Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933,
as amended, or the rules and regulations of the Commission promulgated thereunder.
|
Very truly yours,
|
|
| /s/ Barnes & Thornburg LLP |
|
|
BARNES & THORNBURG LLP
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement of Horizon Bancorp, Inc. on Form S-3 of our reports dated March 15, 2024 on our audits of the
consolidated financial statements of Horizon Bancorp, Inc. as of December 31, 2023 and 2022 and for the three-year period ended December 31, 2023 and our audit of the internal control of financial reporting of Horizon Bancorp, Inc. as of December 31,
2023, which reports are included in the Annual Report on Form 10-K. We also consent to the reference to our firm under the heading of “Experts.”
|
|
|
|
|
|
|
|
Forvis Mazars, LLP
/s/ Forvis Mazars, LLP
|
Indianapolis, Indiana
September 23, 2024
Exhibit 24.1
POWER OF ATTORNEY
The undersigned director of HORIZON BANCORP, INC., an Indiana corporation (the “Company”), does hereby make, constitute and appoint each of Thomas M. Prame and John R. Stewart,
and each of them with the power to act alone, his or her true and lawful attorney-in-fact and agent, 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
and all amendments, including pre-effective and post-effective amendments to a Registration Statement or Registration Statements to be filed on Form S-3 or other applicable form, with all exhibits thereto, and any other documentation in connection
therewith, to be filed by said Company with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents 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 all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of Attorney this 23rd day of September, 2024.
| /s/ Thomas M. Prame | /s/ Michele M. Magnuson | |
|
Thomas M. Prame
|
Michele M. Magnuson
|
|
| /s/ Eric P. Blackhurst | /s/ Kevin W. Ahern | |
|
Eric P. Blackhurst
|
Kevin W. Ahern
|
|
| /s/ Lawrence E. Burnell | /s/ Steven W. Reed | |
|
Lawrence E. Burnell
|
Steven W. Reed
|
|
| /s/ Craig M. Dwight | /s/ Vanessa P. Williams | |
|
Craig M. Dwight
|
Vanessa P. Williams
|
|
| /s/ James B. Dworkin | ||
|
James B. Dworkin
|
||
| /s/ Julie Scheck Freigang | ||
|
Julie Scheck Freigang
|
||
| /s/ Brian W. Maass | ||
|
Brian W. Maass
|