KKR & Co. Inc 8-K, filed Mar 31, 2021
KKR & Co. Inc. (KKR)
8-K
2021-03-31
For: 2021-03-31
View Original
Added on
April 05, 2026
About this 8-K
KKR & Co. Inc filed this 8-K on March 31, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 31, 2021
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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Telephone: (212 ) 750-8300
(Address, zip code, and telephone number, including
area code, of registrant's principal executive office.)
NOT APPLICABLE
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading symbol(s)
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Name of each exchange on which
registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (Sec.230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (Sec.240.12b-2 of this chapter).
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Emerging growth company
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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 13(a) of the Exchange Act.
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| Item 1.01 |
Entry into a Material Definitive Agreement.
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The information set forth below under Item 2.03 of this Report on Form 8-K is hereby incorporated by reference into this Item 1.01.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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On March 31, 2021, KKR Group Finance Co. IX LLC (the “Issuer”), an indirect subsidiary of KKR & Co. Inc. (the “Corporation”), completed the offering of
$500,000,000 aggregate principal amount of its 4.625% Subordinated Notes due 2061 (the “Notes”). The Notes are guaranteed by the Corporation and KKR Group Partnership L.P., an indirect subsidiary of the Corporation (together with the
Corporation, the “Guarantors”). The Notes were issued pursuant to an indenture (the “Base Indenture”) dated March 31, 2021, as supplemented by a first supplemental indenture, dated March 31, 2021 (the “First Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), each among the Issuer, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).
The Notes bear interest at a rate of 4.625% per annum and will mature on April 1, 2061 unless earlier redeemed. Interest on the Notes accrues from March 31, 2021 and is
payable quarterly in arrears on January 1, April 1, July 1 and October 1 of each year, commencing on July 1, 2021 and ending on the maturity date. The Notes are unsecured and subordinated obligations of the Issuer. The Notes are fully and
unconditionally guaranteed (the “Guarantees”), jointly and severally, on a subordinated basis, by each of the Guarantors. The Guarantees are unsecured obligations of the Guarantors.
The Indenture includes covenants, including limitations on the Issuer’s and the Guarantors’ ability to, subject to exceptions, incur indebtedness secured by liens on voting
stock or profit participating equity interests of their subsidiaries or merge, consolidate or sell, transfer or convey all or substantially all of their assets. The Indenture also provides for events of default and further provides that the Trustee
or the holders of not less than 25% in aggregate principal amount of the outstanding Notes may declare the Notes immediately due and payable upon the occurrence and during the continuance of any event of default after expiration of any applicable
grace period. In the case of specified events of bankruptcy, insolvency, receivership or reorganization, the principal amount of the Notes and any accrued and unpaid interest on the Notes automatically become due and payable. On or after April 1,
2026, the Notes may be redeemed at the Issuer’s option in whole or in part, at any time and from time to time, at par plus any accrued and unpaid interest to, but excluding, the date of redemption; provided that if the Notes are not redeemed in
whole, at least $25 million aggregate principal amount of the Notes must remain outstanding after giving effect to such redemption. If a “tax redemption event” (as set forth in the Indenture) occurs, the Notes may be redeemed, in whole, but not in
part, within 120 days of the occurrence of such tax redemption event at a redemption price equal to their principal amount plus accrued and unpaid interest to, but excluding, the date of redemption. In addition, the Notes may be redeemed, in whole,
but not in part, at any time prior to April 1, 2026, within 90 days of the occurrence of a “rating agency event” (as set forth in the Indenture), at a redemption price equal to 102% of their principal amount plus any accrued and unpaid interest to,
but excluding, the date of redemption.
The preceding is a summary of the terms of the Base Indenture, the First Supplemental Indenture and the form of the Notes, and is qualified in its entirety by reference to
the Base Indenture filed as Exhibit 4.1 to this report, the First Supplemental Indenture filed as Exhibit 4.2 to this report, and the form of the Notes filed as Exhibit 4.3 to this report and incorporated herein by reference as though they were fully
set forth herein.
| Item 8.01 |
Other Events.
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Copies of the opinions of Simpson Thacher & Bartlett LLP and the Maples Group, counsel to the Issuer and the Guarantors, relating to the legality of the Notes and the
Guarantees are filed as Exhibits 5.1 and 5.2 hereto, respectively.
| Item 9.01 |
Financial Statements and Exhibits.
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| (d) |
Exhibits:
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Exhibit
Number
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Description
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Indenture dated as of March 31, 2021 among KKR Group Finance Co. IX LLC, KKR & Co. Inc., KKR Group Partnership L.P. and The Bank of New York Mellon Trust Company, N.A., as trustee.
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First Supplemental Indenture dated as of March 31, 2021 among KKR Group Finance Co. IX LLC, KKR & Co. Inc., KKR Group Partnership L.P. and The Bank of New York Mellon Trust Company, N.A.,
as trustee.
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Form of 4.625%
Subordinated Note due 2061 (included in Exhibit 4.2 hereto).
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Opinion of Simpson Thacher & Bartlett LLP.
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Opinion of the Maples Group.
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104
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Cover Page Interactive Data File, formatted in Inline XBRL
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned thereto duly authorized.
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KKR & CO. INC.
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Date: March 31, 2021
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By:
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/s/ Christopher Lee
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Name:
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Christopher Lee
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Title:
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Assistant Secretary
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Exhibit 4.1
INDENTURE
Dated as of March 31, 2021
Among
KKR GROUP FINANCE CO. IX LLC,
As Issuer,
THE GUARANTORS NAMED HEREIN
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939
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Trust Indenture Act Section
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Indenture Section
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Section 310(a)(1)
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Section 609
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(a)(2)
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Section 609
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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Section 608
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Section 610
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Section 311(a)
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Section 613
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(b)
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Section 613
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Section 312(a)
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Section 701
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Section 702
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(b)
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Section 702
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(c)
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Section 702
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Section 313(a)
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Section 703
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(b)
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Section 703
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(c)
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Section 703
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(d)
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Section 703
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Section 314(a)
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Section 704
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(a)(4)
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Section 1004
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(b)
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Not Applicable
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(c)(1)
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Section 102
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(c)(2)
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Section 102
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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Section 102
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Section 315(a)
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Section 601
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(b)
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Section 602
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(c)
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Section 601
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(d)
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Section 601
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(e)
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Section 513
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Section 316(a)
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Section 101
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(a)(1)(A)
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Section 502
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Section 511
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(a)(1)(B)
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Section 512
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(a)(2)
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Not Applicable
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(b)
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Section 508
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(c)
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Section 104
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Section 317(a)(1)
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Section 504
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(a)(2)
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Section 504
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(b)
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Section 1003
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Section 318(a)
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Section 107
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NOTE: This reconciliation and
tie shall not, for any purpose, be deemed to be a part of this Indenture.
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TABLE OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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ARTICLE I
Definitions and Other Provisions of General Application
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Section 101.
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Definitions
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1
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Section 102.
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Compliance Certificates and Opinions
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9
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Section 103.
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Form of Documents Delivered to Trustee
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10
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Section 104.
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Acts of Holders; Record Dates
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10
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Section 105.
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Notices, Etc., to Trustee, Company and Guarantors
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12
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Section 106.
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Notice to Holders; Waiver
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13
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Section 107.
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Conflict with Trust Indenture Act
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14
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Section 108.
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Effect of Headings and Table of Contents
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14
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Section 109.
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Successors and Assigns
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Section 110.
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Separability Clause
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14
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Section 111.
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Benefits of Indenture
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Section 112.
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Governing Law, Jurisdiction, Venue
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15
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Section 113.
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Legal Holidays
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15
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Section 114
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No Recourse Against Others
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Section 115
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Waiver of Jury Trial
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Section 116.
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Compliance with Applicable Law
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ARTICLE II
Security Forms
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Section 201.
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Forms Generally
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Section 202.
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Form of Legend for Global Securities
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Section 203.
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Form of Trustee’s Certificate of Authentication
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ARTICLE III
The Securities
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Section 301.
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Amount Unlimited; Issuable in Series
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Section 302.
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Denominations
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Section 303.
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Execution, Authentication, Delivery and Dating
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Section 304.
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Temporary Securities
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Section 305.
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Registration, Registration of Transfer and Exchange
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Section 306.
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Mutilated, Destroyed, Lost and Stolen Securities
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25
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ii
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Section 307.
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Payment of Interest; Interest Rights Preserved
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Section 308.
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Persons Deemed Owners
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Section 309.
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Cancellation
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Section 310.
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Computation of Interest
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Section 311.
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CUSIP or ISIN Numbers
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Section 312.
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Original Issue Discount
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Section 313.
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General Provisions Relating to Global Securities
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ARTICLE IV
Satisfactio and Discharge
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Section 401.
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Satisfaction and Discharge of Indenture
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Section 402.
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Application of Trust Money
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ARTICLE V
Remedies
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Section 501.
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Events of Default
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30
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Section 502.
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Acceleration of Maturity; Rescission and Annulment
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Section 503.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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33
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Section 504.
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Trustee May File Proofs of Claim
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34
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Section 505.
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Trustee May Enforce Claims Without Possession of Securities
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Section 506.
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Application of Money Collected
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Section 507.
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Limitation on Suits
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Section 508.
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Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities
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36
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Section 509.
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Rights and Remedies Cumulative
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36
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Section 510.
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Delay or Omission Not Waiver
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Section 511.
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Control by Holders
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Section 512.
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Waiver of Past Defaults
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37
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Section 513.
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Undertaking for Costs
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37
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Section 514.
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Waiver of Usury, Stay or Extension Laws
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37
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Section 515.
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Restoration of Rights and Remedies
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38
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ARTICLE VI
The Trustee
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Section 601.
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Certain Duties and Responsibilities of Trustee
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38
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Section 602.
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Notice of Defaults
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Section 603.
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Certain Rights of Trustee
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39
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Section 604.
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Not Responsible for Recitals or Issuance of Securities
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41
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Section 605.
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May Hold Securities
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41
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Section 606.
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Money Held in Trust
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41
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Section 607.
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Compensation and Reimbursement
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42
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Section 608.
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Conflicting Interests
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43
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Section 609.
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Corporate Trustee Required; Eligibility
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43
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Section 610.
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Resignation and Removal; Appointment of Successor
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iii
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Section 611.
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Acceptance of Appointment by Successor
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45
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Section 612.
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Merger, Conversion, Consolidation or Succession to Business
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46
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Section 613.
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Preferential Collection of Claims Against Company
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46
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Section 614.
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Trustee’s Application for Instructions from the Company
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46
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ARTICLE VII
Holders’ Lists and Reports by the Trustee, the Company and the Guarantors
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Section 701.
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Company to Furnish Trustee Names and Addresses of Holders
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47
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Section 702.
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Preservation of Information; Communications to Holders
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47
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Section 703.
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Reports by Trustee
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47
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Section 704.
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Reports by the Company and the Guarantors
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48
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ARTICLE VIII
Consolidation, Merger, Sale of Assets and Other Transactions
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Section 801.
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Company and Guarantors May Merge or Transfer Assets on Certain Terms
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48
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Section 802.
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Successor Person Substituted
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49
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ARTICLE IX
Supplemental Indentures
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Section 901.
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Supplemental Indentures Without Consent of Holders
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49
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Section 902.
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Supplemental Indentures With Consent of Holders
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50
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Section 903.
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Execution of Supplemental Indentures
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51
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Section 904.
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Effect of Supplemental Indentures
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52
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Section 905.
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Conformity with Trust Indenture Act
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52
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Section 906.
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Notice of Supplemental Indenture; Reference in Securities to Supplemental Indentures
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52
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ARTICLE X
Covenants
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Section 1001.
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Payment of Principal, Premium, if any, and Interest
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53
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Section 1002.
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Maintenance of Office or Agency
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53
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Section 1003.
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Money for Securities Payments to Be Held in Trust
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54
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Section 1004.
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Statement by Officers as to Default
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55
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Section 1005.
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Waiver of Certain Covenants
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55
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Section 1006.
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No Conflicts with Sanctions Laws
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55
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ARTICLE XI
Redemption of Securities
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Section 1101.
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Applicability of Article
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56
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Section 1102.
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Election to Redeem; Notice to Trustee
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56
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Section 1103.
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Selection by Trustee of Securities to Be Redeemed
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56
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Section 1104.
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Notice of Redemption
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57
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Section 1105.
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Deposit of Redemption Price
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58
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iv
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Section 1106.
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Securities Payable on Redemption Date
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58
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Section 1107.
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Securities Redeemed in Part
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59
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ARTICLE XII
Sinking Funds
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Section 1201.
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Applicability of Article
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59
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Section 1202.
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Satisfaction of Sinking Fund Payments with Securities
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59
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Section 1203.
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Redemption of Securities for Sinking Fund
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60
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ARTICLE XIII
Defeasance and Covenant Defeasance
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Section 1301.
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Company’s Option to Effect Defeasance or Covenant Defeasance
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60
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Section 1302.
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Section 1302. Defeasance and Discharge
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60
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Section 1303.
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Covenant Defeasance
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61
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Section 1304.
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Conditions to Defeasance or Covenant Defeasance
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61
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Section 1305.
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
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63
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Section 1306.
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Reinstatement
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63
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ARTICLE XIV
Guarantee of Securities
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Section 1401.
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Guarantee
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64
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Section 1402.
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Additional Guarantors
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64
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Section 1403.
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Waiver
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64
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Section 1404.
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Guarantee of Payment
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64
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Section 1405.
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No Discharge or Diminishment of Guarantee
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65
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Section 1406.
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Defenses of Company Waived
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65
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Section 1407.
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Continued Effectiveness
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65
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Section 1408.
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Subrogation
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66
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Section 1409.
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Subordination
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66
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Section 1410.
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Release of Guarantor and Termination of Guarantee
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66
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Section 1411.
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Limitation of Guarantors’ Liability
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67
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Section 1412.
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No Obligation to Take Action Against the Company
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68
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Section 1413.
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Execution and Delivery
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68
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v
INDENTURE, dated as of March 31, 2021, among KKR Group Finance Co. IX LLC, a limited liability company organized under the laws of Delaware (herein
called the “Company”), each of the Guarantors named herein (the “Guarantors”) and The Bank of New York
Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”).
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debt
securities (herein called the “Securities”), to be issued in one or more series as provided in this Indenture.
Each Guarantor has duly authorized its guarantee of the Securities (the “Guarantees”)
and to provide therefor each Guarantor has duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of each of the Company and the Guarantors, 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 (as defined herein) thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
Definitions and Other Provisions of General Application
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) unless the context otherwise requires, any reference to an “Article,” a “Section” or a “Schedule” refers to an Article, a Section or a Schedule, as
the case may be, of this Indenture;
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(6) “including” means including without limitation;
(7) when used with respect to any Security, the words “convert,” “converted” and “conversion” are intended to refer to the right of the Holder, the
Company or the Guarantors 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 301, and these words are not
intended to refer to any right of the Holder, the Company or the Guarantors to exchange such Security for other Securities of the same series and of like tenor pursuant to Section 304, 305, 306, 906 or 1107 or another similar provisions of this
Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 301; and
(8) unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such
agreements and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture.
“Act,” when used with respect to any Holder, has the meaning specified in Section
104.
“Affiliate” means, with respect to any specified Person, 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 Law” has the meaning specified in Section 116.
“Applicable Procedures” means, with respect to a Depositary, as to any matter at
any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“Bankruptcy Law” means Title 11, United States Code, or any similar Federal or
state or foreign law for the relief of debtors.
“Business Day” means, when used with respect to any Place of Payment, unless
otherwise specified as contemplated by Section 301, any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies are authorized or obligated by law, regulation or executive order to close in that Place
of Payment.
“Commission” means the U.S. Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at
such time.
“Company” means the Person named as the “Company” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
2
“Company Request” or “Company Order” means a written request or order signed by or on behalf of the Company by any Officer, manager, member or partner thereof (or any Person designated in writing as authorized to execute and deliver Company Requests and
Company Orders), and delivered to the Trustee.
“Company Resolution” means a copy of one or more resolutions certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by the member or members of the Company or board of directors of the Company, as the case may be, and to be in full force and effect on the date of such certification and
delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee at which, at
any particular time, its corporate trust business shall be conducted, which office is located as of the date of this Indenture at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, Attention: Corporate Trust Administration, or at
any other time at such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to
time by notice to the Company).
“Corporation” means KKR & Co. Inc., a Delaware corporation.
“Covenant Defeasance” has the meaning specified in Section 1303.
“Credit Group” means the Credit Parties and the Credit Parties’ direct and
indirect Subsidiaries (to the extent of their economic ownership interest in such Subsidiaries) taken as a whole.
“Credit Parties” means the Company and the Guarantors.
“Custodian” means any custodian, receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
“Default” means any event which is, or after notice or passage of time or both
would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“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 registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Electronic Means” shall mean the following communications methods: e-mail,
facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with
its services hereunder.
“Event of Default” has the meaning specified in Section 501.
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“Exchange Act” means the U.S. Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
“Expiration Date” has the meaning specified in Section 104.
“FATCA Withholding Tax” shall mean any withholding or deduction required pursuant
to an agreement described in Section 1471(b) of the Internal Revenue Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any regulations or agreements thereunder or official interpretations thereof) or
any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).
“GAAP” means generally accepted accounting principles in the United States
(including, if applicable, International Financial Reporting Standards) as in effect from time to time.
“Global Security” means a Security that evidences all or part of the Securities
of any series and bears the legend set forth in Section 202 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Guarantees” has the meaning specified in the second recital of this Indenture
and more particularly means any Guarantee made by each of the Guarantors as set forth in Article XIV hereof.
“Guarantors” means (i) each of the Persons listed on Schedule I attached hereto
and (ii) in the future, any New KKR Entity that becomes a Guarantor pursuant to Article XIV, but in each case excluding Persons who cease to be Guarantors in accordance with this Indenture.
“Holder” means a Person in whose name a Security is registered in the Security
Register.
“Indenture” means this Indenture 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 Indenture and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section
301.
“Insignificant Guarantor” means a Guarantor (or a group of Guarantors taken
together) that would not, on a combined and consolidated basis and taken as a whole together with all then-existing Non-Guarantor Entities designated pursuant to clause (ii) of the definition of Non-Guarantor Entity set forth in Section 1410,
constitute a Significant Subsidiary.
“Interest” means, when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
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“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended
from time to time.
“Maturity” means, when used with respect to any Security, the date on which the
principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“New KKR Entity” means any direct or indirect Subsidiary of the Corporation other
than (i) a then-existing Guarantor, (ii) any Person in which the Corporation directly or indirectly owns its interest through one or more of the then-existing Guarantors or (iii) any Person through which the Corporation directly or indirectly owns
its interests in one or more then-existing Guarantors.
“Non-Guarantor Entity” means any Person so designated by the Company pursuant to
Section 1410.
“Non-Guarantor Limitation” has the meaning specified in Section 1410.
“Notice of Default” means a written notice of the kind specified in Section 501.
“Obligations” has the meaning specified in Section 1401.
“Obligor” has the meaning given to such term in the Trust Indenture Act.
“Officer” means any Chairman, any Vice Chairman, any Chief Executive Officer, the
President, the Chief Operating Officer, the Treasurer, any Vice President, any Assistant Treasurer, the Principal Accounting Officer, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, any Senior Principal, the Secretary
or any Assistant Secretary of the Company or any Guarantor (or any sole or managing member or general partner of the Company or any Guarantor), as the case may be, or, in the case of the Company or the Guarantors’ general partners, any Person
designated as an officer pursuant to the organizational documents of the Company or the Guarantors.
“Officers’ Certificate” means a certificate signed by two Officers of the Company
or any Guarantor (or any sole or managing member or general partner of the Company or any Guarantor), as the case may be, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel (who may be counsel for,
including an employee of, the Company or for any Guarantor) and who shall be reasonably acceptable to the Trustee.
“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 502.
“Outstanding” means, when used with respect to Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:
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(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) 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 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;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302;
(4) Securities which have been paid pursuant to Section 306 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
(5) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made available), 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 301;
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, (A) 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 502, (B) 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 301, (C) 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 301, of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of
the amount determined as provided in such clause), and (D) Securities owned by the Company, any Guarantor or any other obligor upon the Securities or any Affiliate of the Company, any Guarantor or such other obligor shall be disregarded and deemed
not to be Outstanding (except in the case where the Securities are 100% owned by the Company or any Affiliate of the Company), 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 actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, any Guarantor or any other obligor upon the Securities or any Affiliate
of the Company, any Guarantor or such other obligor.
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“Paying Agent” means any Person authorized by the Company to pay the principal of
or premium, if any, or interest on any Securities on behalf of the Company or any Guarantor.
“Permitted Jurisdictions” has the meaning specified in Section 801(a)(1).
“Person” means an individual, a corporation, a partnership, a limited liability
company, an association, a trust, or any other entity including government or political subdivision or an agency or instrumentality thereof.
“Place of Payment” means, when used with respect to the Securities of any series,
the place or places where the principal of and premium, if any, and interest on the Securities of such series are payable as specified as contemplated by Section 301.
“Predecessor Security” means, with respect to any particular Security, 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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date” means, when used with respect to any Security to be redeemed,
the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed,
the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” means, for the interest payable on any Interest Payment
Date on the Securities of any series, the date specified for that purpose as contemplated by Section 301.
“Repayment Date” means, when used with respect to a Security to be repaid at the
option of a Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Responsible Officer” means with respect to the Trustee, any officer assigned to
the corporate finance group (or any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture and, for the purposes of Section
601(3)(B) and the second sentence of Section 602, shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Securities” has the meaning specified in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933 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 305.
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“Senior Principal” means any member of the Series I Preferred Stockholder who
holds any limited liability partnership interests in the Series I Preferred Stockholder.
“Series I Preferred Stockholder” means KKR Management LLP, a Delaware limited
liability partnership.
“Significant Subsidiary” means a “significant subsidiary” (as such term is
defined in Rule 1-02(w) of Regulation S-X under the Securities Act or any successor provision) of the Corporation.
“Special Record Date” means, for the payment of any Defaulted Interest, a date
fixed by the Trustee pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any
installment of principal thereof or interest thereon, 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 subsidiary of a Person that is or would be consolidated
with such Person in the preparation of segment information (or, in the absence of segment information, comparable non-GAAP information) with respect to the combined financial statements of such Person. Notwithstanding the foregoing, a Subsidiary
shall not include (a) any private equity or other investment fund or vehicle or (b) any portfolio company of any such fund or vehicle.
“Substantially All Merger” means a merger or consolidation of one or more Credit
Parties with or into another Person that would, in one or a series of related transactions, result in the transfer or other disposition, directly or indirectly, of all or substantially all of the combined assets of the Credit Group taken as a whole
to a Person that is not within the Credit Group immediately prior to such transaction.
“Substantially All Sale” means a sale, assignment, transfer, lease or conveyance
to any other Person, in one or a series of related transactions, directly or indirectly, of all or substantially all of the combined assets of the Credit Group taken as a whole to a Person that is not within the Credit Group immediately prior to such
transaction.
“Successor Person” has the meaning specified in Section 801(a)(1).
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939 as in force at
the date as of which this Indenture 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.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this
Indenture 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
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respect to the Securities of any series shall mean the Trustee with respect to Securities of such series.
“U.S. Government Obligation” means (x) any security which is (i) 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 (ii) 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 (i) or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) 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 (x) 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.
“Vice President” means, when used with respect to the Company or any Guarantor
(or any sole or managing member or general partner of the Company or any Guarantor) or the Trustee, any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
Upon any application or request by the Company or any Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or
such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for
in Section 1004) shall include:
(1) a statement that each
individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the
opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(4) a statement as to whether,
in the opinion of each such individual, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such Officer’s certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers stating that the information with respect to such factual matters is in the
possession of the Company or a Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
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.
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 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 or the Guarantors. 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 601, conclusive in favor of the Trustee, the Company and the Guarantors, if made in the manner provided in this Section 104.
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 Person
acting in a capacity other than such Person’s individual capacity, such
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certificate or affidavit shall also constitute sufficient proof of such Person’s 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, any Security Registrar, any Paying
Agent or the Company or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
The Company or any Guarantor 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 none of the Company or any Guarantor may set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making 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 take the relevant action,
whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless 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 or any Guarantor 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 cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the
Company or any Guarantor, 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 106.
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 or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 511, 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 join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless 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
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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 cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is
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 and
the Guarantors in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section 104, the party hereto which sets such record dates 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 106, 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 104, 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 as provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
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,
(1) the Trustee by any Holder
or by the Company or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile) to or with the Trustee at its Corporate Trust Office at the location specified in Section
101; or
(2) the Company or a Guarantor
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 or any Guarantor addressed to the attention of the
Secretary of the Company or such Guarantor at the address of the Company’s principal office specified in writing to the Trustee by the Company and, until further notice, at 30 Hudson Yards, New York, New York 10001, fax number: (212) 750-0003,
Attention: Chief Financial Officer.
The Trustee shall have the right, but shall not be required, to rely upon and comply with instructions and directions sent by e-mail, facsimile and other
similar unsecured electronic methods by persons believed by the Trustee to be authorized to give instructions and directions
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on behalf of the Company or a Guarantor. The Trustee shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is, in
fact, a person authorized to give instructions or directions on behalf of the Company or such Guarantor; and the Trustee shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by the Company or such Guarantor as
a result of such reliance upon or compliance with such instructions or directions. The Company and each Guarantor agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority
to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company
whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such
Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have
been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the
Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall
not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction.
The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and
misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the
method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and
circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s 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
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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 the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture
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.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
All covenants and agreements in this Indenture by the Company and the Guarantors shall bind their respective successors and assigns, whether so expressed
or not. All agreements of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
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.
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.
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Section 112. Governing Law, Jurisdiction, Venue.
This Indenture, the Securities and the Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York. The Company,
the Guarantors and the Trustee agree that any legal suit, action or proceeding arising out of or relating to this Indenture, and the Company, the Guarantors and Holders of the Securities agree that any legal suit, action or proceeding arising out of
or relating to the Securities, may be instituted, brought and enforced in the United States District Court for the Southern District of New York (or, other than with respect to a cause of action arising under the Securities Act, if such court does
not have jurisdiction over such action, suit or proceeding, the Supreme Court of New York County (Commercial Division) in the State of New York of the State of New York), which will be the exclusive forum for any such actions, suits or proceedings,
except that any action, suit or proceeding asserting a cause of action arising under the Exchange Act may also be brought and enforced in any federal district court of the United States, which will be the exclusive forum for such actions, suits or
proceedings. Holders of the Securities will be deemed to have consented to the jurisdiction of such courts and have waived any objection that such courts represent an inconvenient forum for any such suit, action or proceeding.
In any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Security, or any date on which a Holder has the
right to convert such Holder’s 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 113)) payment of principal and premium, if any, or interest, or the Redemption Price 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, Redemption Date or Repayment Date or at the Stated Maturity, or on such conversion date. In the case, however, of Securities of a
series bearing interest at a floating rate, if any Interest Payment Date (other than the Redemption Date, Repayment Date or Stated Maturity) would otherwise be a date that is not a Business Day, then the Interest Payment Date shall be postponed to
the following date which is a Business Day, unless that Business Day falls in the next succeeding calendar month, in which case the Interest Payment Date will be the immediately preceding Business Day. No interest shall accrue for the period from and
after any such Interest Payment Date, Redemption Date, Repayment Date, Stated Maturity or conversion date, as the case may be, to the date of such payment.
A director, partner, officer, employee, member, manager or stockholder as such of the Company or any Guarantor shall not have any liability for any
obligations of the Company under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the issue of the Securities.
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Section 115. Waiver of Jury Trial.
EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE HOLDERS, BY THEIR ACCEPTANCE OF THE SECURITIES, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS AMONG THE COMPANY, THE GUARANTORS AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE GUARANTEES.
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent
authorities) in effect from time to time (“Applicable Law”), the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent
necessary to comply with Applicable Law (and shall timely pay the amounts so withheld or deducted to the applicable governmental authority) for which The Bank of New York Mellon Trust Company, N.A. shall not have any liability. Each of the Company
and the Trustee agrees to reasonably cooperate and, at the reasonable request of the other, to provide the other with such information as each may have in its possession that is necessary to enable the determination of whether any payments hereunder
are subject to FATCA Withholding Tax.
Security Forms
The Securities of each series shall be in substantially such form or forms as shall be established by or pursuant to a Company Resolution or, subject to
Section 303, set forth in, or determined in the manner provided in, an Officers’ Certificate of the Company pursuant to a Company Resolution, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, 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 applicable tax
laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officer 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 Company 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 303 for the authentication and delivery of such Securities. If all of the Securities of any series established by action taken pursuant to a Company Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
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The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the Officers of the Company executing such Securities, as evidenced by their execution of such Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Dated:
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The Bank of New York Mellon Trust
Company, N.A., as Trustee
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By:
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Authorized Signatory
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ARTICLE III
The Securities
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) a Company Resolution or pursuant to authority
granted by a Company Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate of the Company, or (b) one or more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the
Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) the limit, if any, on 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 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any
interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which
the principal of any Securities of the series is payable or the method used to determine or extend those dates;
(5) 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;
(6) the place or places where
the principal of and premium, if any, and interest on any Securities of the series shall be payable and the manner in which any payment may be made;
(7) 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 Company Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(8) the obligation or the
right, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund 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
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which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than
denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of
principal of or premium, if any, or interest on any Securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the
currency of the United States of America, the currency, currencies or currency units in which the principal of or premium, if any, 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 purposes of the definition of “Outstanding” in Section 101;
(12) if the principal of or
premium, if any, 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 or currency units other than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the principal of or premium, if any, 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);
(13) 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 502;
(14) 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);
(15) if other than by a
Company Resolution, the manner in which any election by the Company to defease any Securities of the series pursuant to Section 1302 or Section 1303 shall be evidenced; whether any Securities of the series other than Securities denominated in U.S.
dollars and bearing interest at a fixed rate are to be subject to Section 1302 or Section 1303; or, in the case of Securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the Securities of the series, in
whole or any specified part, shall not be defeasible pursuant to Section 1302 or Section 1303 or both such Sections;
(16) 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 in addition to or in lieu of that set forth in Section 202 and any circumstances in
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addition to or in lieu of those set forth in clause (2) of the last paragraph of Section 305 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 such Global Security;
(17) any addition to, deletion
from or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section
502;
(18) any addition to, deletion
from or change in the covenants set forth in Article X which applies to Securities of the series;
(19) if the Securities of the
series are to be convertible into or exchangeable for cash and/or any securities or other property of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable;
(20) whether the Securities of
the series will be guaranteed by any Person or Persons other than the Guarantors and, if so, the identity of such Person or Persons, the terms and conditions upon which such Securities shall be guaranteed and, if applicable, the terms and
conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
(21) whether the Securities of
the series and, if applicable, any guarantees of such Securities will be senior or subordinated obligations as specified in or pursuant to the applicable indenture and in the certificates evidencing such Securities and those made part of the
indenture by the Trust Indenture Act;
(22) whether the Securities of
the series will be secured by any collateral and, if so, the terms and conditions upon which such Securities shall be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of the Company or
any Guarantor;
(23) if a party other than The
Bank of New York Mellon Trust Company, N.A. is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such party; and
(24) any other terms of the
series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(12)).
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
Company Resolution referred to above or pursuant to authority granted by one or more Company Resolutions and, subject to Section 303, set forth, or determined in the manner provided, in the Officers’ Certificate of the Company referred to above or in
any such indenture supplemental hereto.
All Securities of any one series need not be issued at one time and, unless otherwise provided in or pursuant to the Company Resolution referred to above
and, subject to Section 303,
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set forth, or determined in the manner provided, in the Officers’ Certificate of the Company referred to above or pursuant to authority granted by one or more Company
Resolutions or in any such indenture supplemental hereto with respect to a series of Securities, additional Securities of a series may be issued, at the option of the Company, without the consent of any Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Company 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 Officers’ Certificate of the Company setting forth the terms of the series.
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 301. 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 $2,000 and any integral multiple of $1,000 in excess
thereof.
The Securities shall be executed on behalf of the Company by one of its Officers. The signature on the Securities may be manual, electronic or facsimile.
Securities 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 Company Resolutions or pursuant to authority granted by one or more Company Resolutions as permitted by Sections 201 and 301, 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 601, shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such
Securities has been established by or pursuant to Company Resolution or pursuant to authority granted by one or more Company Resolutions as permitted by Section 201, that such form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such
Securities have been established by or pursuant to Company Resolution or pursuant to authority granted by one or more Company Resolutions as permitted
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by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities and
the related Guarantees, when the Securities are authenticated by the Trustee and issued and delivered by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and each Guarantor, respectively, enforceable against the Company and each Guarantor, respectively, in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles and (iii) an implied covenant of good faith and fair dealing.
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 adversely 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 301 and of the preceding paragraph of this Section 303, if all Securities of a series are not to be originally
issued at one time, except in the event that the aggregate principal amount of a series of Outstanding Securities is increased as contemplated by Section 301, it shall not be necessary to deliver the Officers’ Certificate of the Company otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to this Section 303 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 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 or electronic 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 309, 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.
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 of such series in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
22
other variations as the Officer or Officers executing such Securities may determine, as evidenced by their execution thereof.
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor 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.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any other 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. The Trustee 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 such 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 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 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 and the respective
Guarantors, 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 such Holder’s attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or the Trustee 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 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of such series (or of such series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) 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.
Neither the Trustee nor the Security Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
The provisions of clauses (1), (2), (3) and (4) of this paragraph shall apply only to Global Securities:
(1) 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.
(2) Notwithstanding any other
provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 301, 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 (A) such Depositary has notified the Company that it is unwilling or unable or no longer
permitted under applicable law to continue as Depositary for such Global Security and a successor Depositary is not appointed within 90 days, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security,
(C) subject to the Applicable Procedures, the Company so directs the Trustee by a Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated
by Section 301.
(3) Subject to clause (2)
above and to such applicable provisions, if any, as may be specified as contemplated by Section 301, 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
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any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) 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 305, Section 304, 306, 906 or 1107 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.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2)
such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen 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 stolen Security has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, 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 counsel to the Company and the fees and expenses of the Trustee and its counsel) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the respective Guarantors, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such series and Guarantees duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided
25
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.
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 (1) or (2) below:
(1) The Company may elect to
make payment of any Defaulted Interest payable on Securities of a series to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as 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 Securities of such series in the manner set forth in Section 106, 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 the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Company may make
payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, 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
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Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for payment) 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.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor
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 premium, if any, and, subject to Section 307, any interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantors, the Trustee nor any agent of the Company, a Guarantor or the Trustee shall be affected by notice to the contrary.
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 cancelled by it. The Company or any Guarantor may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or such Guarantor 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 cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in
this Section 309, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary procedures. The Trustee shall provide the Company or any Guarantor a list of all
Securities that have been cancelled from time to time as requested, in writing, by the Company or such Guarantor.
Except as otherwise specified as contemplated by Section 301 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.
The Company in issuing any series of the Securities may use “CUSIP” or “ISIN” numbers and/or other similar numbers, if then generally in use, and
thereafter with respect to
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such series, the Trustee may use such numbers in any notice of redemption with respect to such series; provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly make the Trustee aware of any changes to the “CUSIP” or “ISIN”
numbers.
If any of the Securities is an Original Issue Discount Security, the Company shall file with the Trustee promptly at the end of each calendar year (1) a
written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original Issue Discount Securities as of the end of such year and (2) such other specific information relating to
such original issue discount as may then be relevant under the Internal Revenue Code.
Owners of beneficial interests in the Securities evidenced by a Global Security will not be entitled to any rights under this Indenture with respect to
such Global Security, and the Depositary or its nominee may be treated by the Company, the Guarantors, and the Trustee and any agent of the Company, the Guarantors or the Trustee, including any Security Registrar or Paying Agent as the owner and
Holder of such Global Security for all purposes whatsoever. None of the Company, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any other agent of the Company, the Guarantors or of the Trustee shall 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. None
of the Company, the Guarantors, the Trustee, the Security Registrar, the Paying Agent or any other agent of the Company, the Guarantors or of the Trustee shall have any responsibility or liability to any person for any acts or omissions of the
Depositary or its nominee in respect of a Global Security, for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of such Global Security, for any transactions between such Depositary and any
participant or indirect participant in such Depositary or between or among such Depositary, any participant or indirect participant in such Depositary and/or any Holder or owner of a beneficial interest in such Global Security, or for any transfers
of beneficial interests in any such Global Security. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Security Registrar or the Paying Agent or such agent from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or its nominee or impair, as between the Depositary or its nominee and such owners of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary
or its nominee as Holder of any Global Security.
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ARTICLE IV
Satisfaction and Discharge
This Indenture shall, upon Company Request, cease to be of further effect with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when:
(1) either
(A) all
Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) 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 1003) have been delivered to the Trustee for cancellation; or
(B) all
such Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year of the date of deposit, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the
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 premium, if any, 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;
(2) the Company has paid or
caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered
to the Trustee an Officers’ Certificate of the Company and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
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In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the applicable series of Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal and premium, if any, and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for
the payment of Securities subsequently converted into other property shall be returned to the Company upon Company Request. The Company may direct by a Company Order the investment of any money deposited with the Trustee pursuant to Section 401,
without distinction between principal and income, in (1) United States Treasury securities with a maturity of one year or less or (2) a money market fund that invests solely in short-term United States Treasury securities (including money market
funds for which the Trustee or an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian, notwithstanding that (a) the Trustee charges and collects fees and expenses from
such funds for services rendered and (b) the Trustee charges and collects fees and expenses for services rendered pursuant to this Indenture at any time) 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 (1) or (2) of this Section 402.
Remedies
Except as may be otherwise provided pursuant to Section 301 for Securities of any series, an “Event of Default” means, whenever used herein or in a
Security issued hereunder with respect to Securities of any series, 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):
(1) the Company defaults in
the payment of any installment of interest on any Security of such series, and such default continues for a period of 30 days after such payment becomes due and payable;
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(2) the Company defaults in
the payment of the principal of or premium, if any, on any Security of such series when the same becomes due and payable, regardless of whether such payment became due and payable at its Stated Maturity, upon redemption, upon declaration of
acceleration or otherwise;
(3) the Company defaults in
the deposit of any sinking fund payment, when and as due by the terms of a Security of such series;
(4) any Credit Party defaults
in the performance of, or breaches, any of its covenants and agreements in respect of any Security of such series contained in this Indenture or in the Securities of such series (other than those referred to in (1), (2) or (3) above), and such
default or breach continues for a period of 90 days after the notice specified below;
(5) the Company or any
Guarantor (other than an Insignificant Guarantor), pursuant to or within the meaning of the Bankruptcy Law (as defined below):
(A) commences
a voluntary case or proceeding;
(B) consents
to the entry of an order for relief against it in an involuntary case or proceeding;
(C) consents
to the appointment of a Custodian (as defined below) of it or for all or substantially all of its property;
(D) makes a
general assignment for the benefit of its creditors;
(E) files a
petition in bankruptcy or answer or consent seeking reorganization or relief;
(F) consents
to the filing of such petition or the appointment of or taking possession by a Custodian; or
(G) takes
any comparable action under any foreign laws relating to insolvency;
(6) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for
relief against the Company or any Guarantor (other than an Insignificant Guarantor) in an involuntary case, or adjudicates the Company or any Guarantor (other than an Insignificant Guarantor) insolvent or bankrupt;
(B) appoints
a Custodian of the Company or any Guarantor (other than an Insignificant Guarantor) or for all or substantially all of the property of the Company or any Guarantor (other than an Insignificant Guarantor); or
(C) orders
the winding-up or liquidation of the Company or any Guarantor (other than an Insignificant Guarantor) (or any similar relief is granted under any foreign laws),
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and the order or decree remains unstayed and in effect for 90 days;
(7) except as otherwise
provided herein, a Guarantee of any Guarantor (other than an Insignificant Guarantor) ceases to be in full force and effect or is declared to be null and void and unenforceable or such Guarantee is found to be invalid or a Guarantor (other than an
Insignificant Guarantor) denies its liability under its Guarantee (other than by reason of release of such Guarantee in accordance with the terms of this Indenture); or
(8) any other Event of Default
provided with respect to Securities of such series occurs.
A Default with respect to Securities of any series under clause (4) of this Section 501 shall not be an Event of Default until the Trustee (by written
notice to the Company and the Guarantors) or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series (by written notice to the Company and the Guarantors and the Trustee) gives notice of the Default
and the Company and the Guarantors does not cure such Default within the time specified in clause (4) after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default.”
The Trustee is not to be charged with knowledge of any Default or Event of Default or knowledge of any cure of any Default or Event of Default unless
written notice of such Default or Event of Default has been given to a Responsible Officer of the Trustee by the Company or any Holder.
If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in Section 501(5) or
(6) with respect to the Company) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal amount of all the
Securities of such series (or, if any Securities of such series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof), together with any accrued and unpaid interest
thereon, to be due and payable immediately, by a notice in writing to the Company and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration, such principal amount (or specified amount), together with any accrued and
unpaid interest thereon, shall become immediately due and payable. If an Event of Default specified in Section 501(5) or (6) with respect to the Company occurs, the principal amount of all the Securities of such series (or, in the case of any
Security of such 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), together with any accrued and unpaid interest thereon, shall
automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment of principal and interest
of the Securities of such series shall terminate.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, at any time after such a declaration of
acceleration with respect to the
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Securities of any series has been made and before a judgment or decree for payment of the money due based on such acceleration has been obtained by the Trustee as
hereinafter in this Article V provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company, the Guarantors and the Trustee, may rescind and annul such declaration and
its consequences if:
(1) the Company or any
Guarantor has paid or deposited with the Trustee a sum sufficient to pay:
(A) all
overdue interest on all Securities of such series,
(B) the
principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in the Securities of such series,
(C) to the
extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with
respect to Securities of such series, other than the nonpayment of the principal of Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 512.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
The Company covenants that if (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or (2) default is made in the payment of the principal of or premium, if any, on any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for principal and premium, if any, 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 necessary to protect and enforce any such rights, whether for the specific enforcement of
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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.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, any Guarantor or any other obligor upon the Securities or the property of the Company, any Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or any Guarantor for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim
for the whole amount of principal and premium, if any, and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(2) 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 the 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 to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and for any other amounts due the Trustee under Section 607.
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.
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, any predecessor Trustee under Section 607, its agents and counsel,
34
be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Any money collected by the Trustee pursuant to this Article V, and any money or other property distributable in respect of the Company’s obligations
under this Indenture after the occurrence of an Event of Default, 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 premium, if any, 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 (including any predecessor Trustee) under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and premium, if any, 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 premium, if any, and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company or the Guarantors.
Except as otherwise provided in Section 508, 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, assignee, trustee, liquidator or sequestrator (or similar official) or for any other remedy hereunder, unless:
(1) Such Holder has previously
given written notice to the Trustee of a continuing Event of Default, specifying an Event of Default with respect to the Securities of such series;
(2) the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such 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;
(3) such Holder or Holders
have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee has failed to
institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity; and
(5) no direction inconsistent
with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series;
35
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 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and, subject to Section 307, interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date or date for
repayment, as the case may be, and, if the terms of such Security so provide, to convert such Security in accordance with its terms) and to institute suit for the enforcement of any such payment and, if applicable, any such right to convert, and such
rights shall not be impaired without the consent of such Holder.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, 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.
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 V 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.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not
be in conflict with any rule of law or with this Indenture and shall not involve the Trustee in any personal liability, and
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(2) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such direction.
Before proceeding to exercise any right or power hereunder at the direction of the Holders, the Trustee shall be entitled to receive from such Holders
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.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past Default hereunder with respect to such series and its consequences, except a Default
(1) in the payment of the
principal of or premium, if any, or interest on any Security of such series, or
(2) in respect of a covenant
or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected,
provided that there had been paid or deposited with
the Trustee a sum sufficient to pay all amounts due to the Trustee and to reimburse the Trustee for any and all fees, expenses and disbursements advanced by the Trustee, its agents and its counsel incurred in connection with such Default or Event
of Default.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
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 reasonable costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section 513 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, any Guarantor or the Trustee,
a suit by a Holder under Section 508, or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Securities.
Each of the Company and the Guarantors 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
37
each of the Company and the Guarantors (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.
Section 515. 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 Guarantors, 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.
The Trustee
(1) Except during the
continuance of an Event of Default with respect to any series of Securities,
(A) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the
Trustee with respect to such series; and
(B) in the
absence of bad faith on its part, the Trustee may conclusively rely with respect to the Securities of such series, 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, statements, opinions or conclusions stated therein).
(2) In case an Event of
Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to the Securities of such series, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(3) 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:
38
(A) this
Section 601(3) shall not be construed to limit the effect of Section 601(1) or Section 601(4);
(B) 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; and
(C) 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 aggregate principal amount of the Outstanding Securities of any series,
determined as provided in Sections 101, 104 and 511, 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.
(4) 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.
(5) 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 601.
If a Default occurs with respect to Securities of any series and is continuing and written notice of such Default has been received by a Responsible
Officer of the Trustee at the Corporate Trust Office of the Trustee, the Trustee shall give to each Holder of Securities of such series notice of Default within 90 days after such written notice is received by such Responsible Officer. Except in the
case of a Default in payment of principal of or interest on any Security, the Trustee may withhold notice if and so long as a committee of Responsible Officers in good faith determines that withholding such notice is in the interests of Holders of
Securities of such series.
Subject to the provisions of Section 601:
(1) the Trustee may
conclusively rely and shall fully 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;
(2) 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 member or
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members of the Company or board of managers of the Company, as the case may be, shall be sufficiently evidenced by a Company Resolution thereof;
(3) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate of the Company or the Guarantors;
(4) 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;
(5) 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;
(6) 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 or the Guarantors, personally or by agent or attorney at the sole cost of the Company or the Guarantors and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation;
(7) 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;
(8) the rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and each agent employed to act
hereunder;
(9) 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;
(10) anything in this
Indenture notwithstanding, in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(11) 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,
pandemics or epidemics, 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 which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances);
(12) the Trustee shall not be
deemed to have notice of any Default or Event of Default unless written notice of such Default or Event of Default, as the case may be, has been received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee from the
Company or any Holder, and such notice references the Securities and this Indenture;
(13) the Trustee may request
that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; and
(14) the permissive right of
the Trustee to take or refrain from taking action hereunder shall not be construed as a duty.
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 Guarantors, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Guarantees. The Trustee
shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company or the Guarantors, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company and the Guarantors with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Money held by the Trustee in trust hereunder shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
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Section 607. Compensation and Reimbursement.
The Company and each Guarantor jointly and severally agrees:
(1) to pay to the Trustee from
time to time such reasonable compensation as shall be agreed to in writing between the parties hereto 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);
(2) 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 reasonable expenses and disbursements of its agents and counsel and all Persons not regularly in its employ), except any such expense, disbursement or advance as may be attributable to its negligence, willful misconduct or bad faith, and
the Trustee shall provide the Company reasonable notice of any expenditure not in the ordinary course of business; and
(3) to indemnify each of the
Trustee or any predecessor Trustee and their officers, agents, directors and employees for, and to hold them harmless against, any and all loss, damage, claims, liability or expense incurred without negligence or bad faith on its part, arising out
of or in connection with this Indenture, the Securities and the transactions contemplated hereby and thereby, including the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending
itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of
this Section.
In addition to, but without prejudice to its other rights under this Indenture, when the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or (6), 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.
“Trustee” for purposes of this Section shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee 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 it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of particular Securities for the payment
of principal of and premium, if any, or interest.
The provisions of this Section 607 shall survive the satisfaction and discharge of the Securities, the termination for any reason of this Indenture and
the resignation or removal of the Trustee.
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Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
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.
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 Borough
of Manhattan, The City of New York or Pittsburgh, Pennsylvania or any other major city in the United States that is acceptable to the Company. 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 609 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 annual 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 609, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article VI.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee or any successor hereafter appointed 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 611 shall not have been delivered to the Trustee within 30 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 aggregate principal amount of
the Outstanding Securities of such series, upon written notice delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 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.
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If at any time:
(1) the Trustee shall fail to
comply with Section 608 after written request therefor by the Company, the Guarantors or any Holder who has been a bona fide Holder of a Security for at least six months,
(2) the Trustee shall cease to
be eligible under Section 609 and shall fail to resign after written request therefor by the Company, the Guarantors or any such Holder, or
(3) the Trustee shall become
incapable of acting or shall be adjudged bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company or the Guarantors may remove the Trustee with respect to all Securities or (B) subject to Section 513, Holders of 10% in aggregate
principal amount of Securities of any series who have been bona fide Holders of such Securities for at least six months may, on behalf of themselves 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 or the Guarantors 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 611. 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 aggregate 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 611,
become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company or the Guarantors. If no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company, the Guarantors or the Holders and accepted appointment in the manner required by Section 611, Holders of 10% in aggregate principal amount of Securities of any series who have been bona fide Holders of Securities of
such series for at least six months may, on behalf of themselves 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 or the Guarantors 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
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the manner provided in Section 106. 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.
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, the Guarantors and the retiring Trustee a written 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, the Guarantors or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver a written instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder subject nonetheless to the lien provided for in Section 607.
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
Guarantors, 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 (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to 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 (3) 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, the Guarantors 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 subject nonetheless to the lien provided for in Section 607.
Upon request of any such successor Trustee, the Company and the Guarantors shall execute any and all instruments for more fully and certainly vesting in
and confirming to such
45
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 VI.
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee
hereunder by mail, first class postage prepaid, to the Holders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense of the Company.
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided that such Person shall be otherwise
qualified and eligible under this Article VI, 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; and in case at that time any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and
in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
If and when the Trustee shall be or become a creditor of the Company or any Guarantor (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 Guarantor (or any such other obligor).
Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed (to
the extent not provided for in this Indenture) to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than 10 Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the
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Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
Holders’ Lists and Reports by the Trustee, the Company and the Guarantors
If the Trustee is not the Security Registrar, the Company shall cause the Security Registrar to furnish to the Trustee, in writing at least five Business
Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of Securities of each series.
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 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may dispose of any list furnished to it as provided in Section 701 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 the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
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. The Trustee shall, within 60 days after each March 10 following the date of this Indenture, deliver to Holders a brief report, dated as of such March 10, pursuant to this Section
703.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation
system, if any, upon which any Securities are listed, with the Commission (if accepted for filing by the Commission) and the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange or automated quotation
system or delisted therefrom.
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Section 704. Reports by the Company and the Guarantors.
Each of the Company and the Guarantors shall comply with all the applicable provisions of the Trust Indenture Act. Delivery of reports, information and
documents to the Trustee is for informational purposes only and shall not constitute a representation or warranty as to the accuracy or completeness of the reports, information and documents. The Trustee’s receipt of such shall not constitute
constructive or actual notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantors’ compliance with any of their covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers’ Certificates of the Company).
Consolidation, Merger, Sale of Assets and Other Transactions
(a) None of the Credit Parties
shall be a party to a Substantially All Merger or participate in a Substantially All Sale, unless:
(1) such
Credit Party is the surviving Person, or the Person formed by or surviving such Substantially All Merger or to which such Substantially All Sale has been made (the “Successor Person”)
is organized under the laws of the United States or any state thereof, or, other than with respect to the Company, Belgium, Bermuda, Canada, Cayman Islands, France, Germany, Gibraltar, Ireland, Italy, Luxembourg, the Netherlands, Switzerland, the
United Kingdom or British Crown Dependencies, a member country of the Organisation for Economic Co-operation and Development or any political subdivision of any of the foregoing (together with the United States or any state thereof, the “Permitted
Jurisdictions”), and has expressly assumed by supplemental indenture all of the obligations of such Credit Party under this Indenture;
(2) immediately
after giving effect to such transaction, no Default or Event of Default has occurred and is continuing; and
(3) the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and any supplemental indenture relating thereto comply with this Indenture and that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.
(b) For as long as any
Securities of any series under this Indenture remain outstanding, all equity and voting interests in the Company shall be owned directly or indirectly by one or more Guarantors and each of the Credit Parties must be organized under the laws of a
Permitted Jurisdiction.
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Section 802. Successor Person Substituted.
Upon the consummation of a transaction contemplated by and consummated in accordance with Section 801, the Successor Person shall succeed to, and be
substituted for, and may exercise every right and power of, the applicable Credit Party under this Indenture, with the same effect as if such Successor Person had been an original party to this Indenture, and, except in the case of a lease, the
applicable Credit Party shall be released from all of its liabilities and obligations under this Indenture and the Securities (including the Guarantees).
Supplemental Indentures
Without the consent of any Holders, the Company, the Guarantors 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:
(1) to add to the covenants
for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power conferred upon the Company or any Guarantor hereunder, under any indenture supplemental hereto or under any series of Securities;
(2) to evidence the succession
of another Person to the Company or any Guarantor, or successive successions, and the assumption by the Successor Person of the covenants, agreements and obligations of the Company or such Guarantor pursuant to Article VIII;
(3) to add any additional
Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series);
(4) to add new Guarantors;
(5) to provide for the release
of any Guarantor in accordance with this Indenture;
(6) to secure the Securities;
(7) 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 611;
(8) to provide for the
issuance of additional Securities of any series;
(9) to establish the form or
terms of Securities of any series as permitted by Sections 201 and 301;
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(10) to comply with the rules
of any applicable Depositary;
(11) 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 uncertificated form;
(12) to add to, change or
eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that any such addition, change or elimination (A) shall neither (i)
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 (ii) modify the rights of the Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no Security described in clause (i) Outstanding;
(13) to cure any ambiguity, to
correct or supplement any provision of this Indenture which may be defective or inconsistent with any other provision herein;
(14) to change any other
provision contained in the Securities of any series or under this Indenture; provided that such action pursuant to this clause (14) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; and
(15) to conform any provision
of this Indenture or the Securities of any series to the description of such Securities contained in the Company’s prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the Securities of such
series.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (including consents obtained in connection with a tender offer or exchange for Securities), by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company, the Guarantors 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, no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series
affected thereby:
(1) change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any Security;
(2) reduce the principal
amount of any Security or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or reduce
the rate of or extend the time of payment of interest on any Security;
(3) reduce any premium payable
upon the redemption of or change the date on which any Security may or must be redeemed;
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(4) change the coin or
currency in which the principal of or premium, if any, or interest on any Security is payable;
(5) impair the right of any
Holder to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as applicable);
(6) reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
(7) modify any of the
provisions of this Section 902, Section 512 or Section 1005, 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 902 and Section 1005, or the
deletion of this proviso, in accordance with the requirements of Section 611 and Section 901(7);
(8) if the Securities of any
series are convertible into or for any other securities or property of the Company, make any change that adversely affects in any material respect the right to convert any Security of such series (except as permitted by Section 901) or decrease the
conversion rate or increase the conversion price of any such Security of such series, unless such decrease or increase is permitted by the terms of such Security;
(9) subordinate the Securities
of any series or any Guarantee of a Guarantor in respect thereof to any other obligation of the Company or such Guarantor;
(10) modify the terms of any
Guarantee in a manner adverse to the Holders of Securities of a series; or
(11) modify clauses (1)
through (10) above.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture,
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the Trustee shall be entitled to receive, in addition to the documents provided by Section 102, and, subject to Section 601, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent in this Indenture to the execution of such supplemental indenture, if any, have been complied
with; provided, however, that no such Opinion of Counsel shall be required in the case of any
supplemental indenture executed and delivered concurrently with the original execution and delivery of 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.
Upon the execution of any supplemental indenture under this Article IX, 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.
Every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act.
After a supplemental indenture under Section 901 (other than Section 901(9)) and 902 becomes effective, the Company shall mail to the Trustee a notice
briefly describing such supplemental indenture or a copy of such supplemental indenture and the Trustee shall on behalf of the Company and at the expense of the Company mail such notice or supplemental indenture to Holders affected thereby. Any
failure of the Trustee to mail such notice, or any defect therein, or any failure of the Trustee to mail such supplemental indenture, shall not in any way impair or affect the validity of any such supplemental indenture.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX 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
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.
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ARTICLE X
Covenants
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and premium, if any,
and interest on the Securities of such series in accordance with the terms of the Securities and this Indenture. Principal and interest shall be considered paid on the date due if, on or before 10:00 a.m. (New York City time) on such date, the
Trustee or the Paying Agent (or, if the Company or any Subsidiary of the Corporation is the Paying Agent, the segregated account or separate trust fund maintained by the Company or such Subsidiary pursuant to Section 1003) holds in accordance with
this Indenture money sufficient to pay all principal, premium and interest then due.
The Company shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful as provided in Section 307.
Notwithstanding anything to the contrary contained in this Indenture, the Company, the Guarantors or the Paying Agent may, to the extent it is required
to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America or other domestic or foreign taxing authorities from principal, premium or interest payments hereunder.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of such series may be presented or
surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and where notices and demands to or upon the Company in respect of the
Securities of such 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. 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 301, the Corporate
Trust Office of the Trustee shall
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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.
If the Company shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date for the principal of
or premium, if any, or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of such Securities a sum sufficient to pay the principal and premium, if any, and interest so becoming due until such
sums shall be paid to such Holders 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, no later than 10:00 a.m. (New York City time) on each
due date for the principal of or premium, if any, or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders of such Securities entitled to the same, 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 1003, that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of,
premium, if any, or interest on the Securities and shall notify the Trustee in writing of any default by the Company in making any such payment and that it shall any time during the continuance of such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by 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.
Subject to any applicable abandoned property law, 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 premium, if any, 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
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respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company ending after the date hereof an Officers’
Certificate of the Company and one of the two Officers signing must be the Company’s principal executive officer, principal financial officer or principal accounting officer, stating whether or not, to the best knowledge of such Officer, the Company
is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture applicable to it (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 such Officer may have knowledge.
The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any
Default or Event of Default an Officers’ Certificate setting forth the details of such Default or Event of Default, its status and the actions which the Company is taking or proposes to take with respect thereto.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company or the Guarantors, as the case may be, may, with
respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(18), Section 901(1) or Section 901(12) for the benefit of the Holders
of such series or in Article VIII, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding 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 or the Guarantors, as the case may be, and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Neither the Company nor the Guarantors nor, to the knowledge of the Company and the Guarantors, any director, officer, agent, employee or Affiliate of
the Company or the Guarantors, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is currently subject to any sanctions (“Sanctions”) administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”),
and each of the Company and the Guarantors represents and covenants that they will not, directly or indirectly, use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any of the
Company or the Guarantors, joint venture partner or other Person for the purpose of financing the activities of any person that is the subject of Sanctions.
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ARTICLE XI
Redemption of Securities
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 301 for such Securities) in accordance with this Article XI.
The election of the Company to redeem any Securities shall be evidenced by a Company Resolution or an Officers’ Certificate of the Company or in another
manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at
least 15 days prior to the date any notice of a redemption is to be given to the Holders pursuant to Section 1104 (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 prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate of the Company evidencing compliance with such restriction.
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 60 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, including by lot or pro rata, 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 60 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. Notwithstanding the foregoing, as long as the
Securities of any series are represented by one or more Global Securities, beneficial interests in such Securities shall be selected for redemption by the Depositary therefor in accordance with the Applicable Procedures.
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 may be) to be the portion selected for redemption.
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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 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 three 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.
Notice of redemption shall be transmitted not less than 15 nor more than 60 days prior to the Redemption Date (or within such period as otherwise
specified as contemplated by Section 301 for Securities of a series), to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price (or
the method of calculating such price);
(3) 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 respective 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;
(4) 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;
(5) the place or places where
each such Security is to be surrendered for payment of the Redemption Price;
(6) 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;
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(7) that the redemption is for
a sinking fund, if such is the case; and
(8) if applicable, the CUSIP,
ISIN or any similar numbers of the Securities of such series; provided, however, that no representation will be made as to the correctness or accuracy of the CUSIP, ISIN or
any similar number, if any, listed in such notice or printed on the Securities.
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 (which may be
rescinded or revoked at any time prior to the time at which the Trustee shall have given such notice to the Holders), by the Trustee in the name and at the expense of the Company. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other Securities.
By no later than 10:00 a.m. (New York City time) on any Redemption Date, the Company shall deposit or cause to be deposited with the Trustee or with a
Paying Agent (or, if any of the Credit Parties is acting as Paying Agent, such Credit Party will segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date or the Securities of the series provide otherwise) accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption which are owned
by any of the Credit Parties and have been delivered by such Credit Party to the Trustee for cancellation. All money, if any, earned on funds held by the Paying Agent shall be remitted to the Company. In addition, the Paying Agent shall promptly
return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
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 307 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.
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, 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, if applicable, with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date
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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 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the Security.
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 such Holder’s 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 principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
Sinking Funds
The provisions of this Article XII shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified
as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any series of Securities is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment.” If provided for by the terms of any series of Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of the series as provided for by the terms of such Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee
at the Redemption Price, as
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specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Not less than 60 days (or such shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee an Officers’ Certificate of the Company specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior
to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
Defeasance and Covenant Defeasance
Unless otherwise provided as contemplated by Section 301, Sections 1302 and 1303 shall apply to all Securities and each series of Securities, denominated
in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article XIII; and the Company may elect, at its
option at any time, to have Section 1302 and Section 1303 applied to any Securities or any series of Securities, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or Section 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article XIII. Any such election shall be evidenced by a Company Resolution, Officers’ Certificate of the Company or in another manner
specified as contemplated by Section 301 for such Securities.
Upon the Company’s exercise of its option, if any, to have this Section 1302 applied to any Securities or any series of Securities, or if this Section
1302 shall otherwise apply to any Securities or any series of Securities, the Company and the Guarantors shall be deemed to have been discharged from their respective obligations with respect to such Securities and related Guarantees as provided in
this Section 1302 on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that
each of the Company and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and Guarantees and to have satisfied all its other obligations under such Securities and Guarantees and this
Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Company
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or the Guarantors, as the case may be, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section 1305, payments in respect of the principal of and premium, if any, and
interest on such Securities when payments are due, (2) the Company’s obligations with respect to such Securities and the Guarantors’ obligations with respect to such Guarantees under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article XIII. Subject to compliance with this Article XIII, the Company or the Guarantors may exercise their option, if any, to have this Section 1302 applied to the Securities of
any series and the related Guarantees notwithstanding the prior exercise of its option, if any, to have Section 1303 applied to such Securities and Guarantees.
Upon the Company’s exercise of its option, if any, to have this Section 1303 applied to any Securities or any series of Securities, or if this Section
1303 shall otherwise apply to any Securities or any series of Securities, (1) the Company and the Guarantors shall be released from their respective obligations under Section 801 and any covenants provided pursuant to Section 301(18), Section 901(1)
or Section 901(12) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 501(4) and Section 501(8) shall be deemed not to be or result in an Event of Default, in each case with respect to such
Securities and Guarantees as provided in this Section 1303 on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect to such Securities and Guarantees, each of the Company and the Guarantors 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, 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 and Guarantees shall be unaffected thereby.
The following shall be the conditions to the application of Section 1302 or 1303 to any Securities or any series of Securities:
(1) The Company shall
irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article XIII 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, (A) money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance with their terms will provide money in an amount, or (C) 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 premium, if
any, and interest on
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such Securities to the respective Stated Maturities or Redemption Dates, in accordance with the terms of this Indenture and such Securities.
(2) In the event of an
election to have Section 1302 apply to any Securities or any series of Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the beneficial
owners 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.
(3) In the event of an
election to have Section 1303 apply to any Securities or any series of Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners 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.
(4) The Company shall have
delivered to the Trustee an Officers’ Certificate of the Company 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.
(5) No Default or Event of
Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, insofar as Section 501(5) or Section 501(6) are concerned, at any time on or prior to the 90th day after the date
of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which it is bound.
(7) The Company shall have
delivered to the Trustee an Officers’ Certificate of the Company and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the
satisfaction of the condition in clause (5)).
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance
with Article XI.
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Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, 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 1305 and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 1304 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 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 premium, if any, and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.
The Company and each Guarantor jointly and severally agrees to 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 1304 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; provided that the Trustee shall be entitled to charge any such tax, fee or other charge to such Holder’s account.
Anything in this Article XIII 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 1304 with respect to any Securities which 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.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article XIII 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 obligations under this Indenture and such Securities and Guarantees from which the Company and the Guarantors have
been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect to such Securities and Guarantees, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities and Guarantees in accordance with this Article XIII; provided, however,
that (a) if the Company or the Guarantors makes any payment of principal of or premium, if any, or interest on any such Security following such reinstatement of its obligations, the Company or the Guarantors, as the case may be, 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 and (b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental authority, the Trustee or
Paying Agent shall return all such money and U.S. Government Obligations to the Company or the Guarantors, as the case may be, promptly after receiving a written request therefor at any time, if such reinstatement of the obligations of the Company or
the Guarantors, as the case may be, has occurred and continues to be in effect.
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ARTICLE XIV
Guarantee of Securities
Each Guarantor hereby jointly and severally and fully and unconditionally guarantees to each Holder of a Security authenticated and delivered by the
Trustee hereunder, and to the Trustee on behalf of each such Holder, the due and punctual payment in full of the principal of and premium, if any, and interest on such Security and all other amounts payable by the Company under the Indenture when and
as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on such Security
(collectively, the “Obligations”), in accordance with the terms of such Security and this Indenture. If the Company shall fail to pay when due any Obligations, for whatever
reason, each Guarantor shall be jointly and severally obligated to pay in cash the same promptly. An Event of Default under this Indenture or the Security of any series shall entitle the Holders of such Securities to accelerate the Obligations of the
Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company.
The Company and each Guarantor shall cause each New KKR Entity (other than a Non-Guarantor Entity) to become a Guarantor pursuant to this Indenture and
provide a Guarantee in respect of the Securities.
To the fullest extent permitted by applicable law, each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders exhaust any right or take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that no Guarantee will be discharged in respect of any Security except by complete performance
of the Obligations contained in such Security and in this Article.
Each Guarantee shall constitute a guarantee of payment when due and not a guarantee of collection. The Guarantors hereby agree that, in the event of a
default in payment of principal of or premium, if any, or interest on any Security, whether at its Stated Maturity, by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or
by, the Holder of such Security, subject to the terms and conditions set forth in this Indenture, directly against the Guarantors to enforce the Guarantee without first proceeding against the Company.
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Section 1405. No Discharge or Diminishment of Guarantee.
Subject to Section 1410, the obligations of each of the Guarantors hereunder shall be absolute and unconditional and not be subject to any reduction,
limitation, termination or impairment for any reason (other than the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Securities, this Indenture or the Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each of the Guarantors hereunder shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder of the Securities to assert any claim or demand or to enforce any remedy under this Indenture or any
Security, any other guarantee or any other agreement, by any waiver, modification or indulgence of any provision thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, by any release of any other
Guarantor pursuant to Section 1410 or by any other act or omission or delay to do any other act that may or might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate as a discharge of any Guarantor as a
matter of law or equity (other than the payment in full in cash of all the Obligations); provided, however, that notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantors, increase the principal amount of such Security, or increase the interest rate thereon, change any redemption provisions thereof (including any change to increase any premium payable upon
redemption thereof) or change the Stated Maturity of any payment thereon, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to
Section 502 of this Indenture.
To the extent permitted by applicable law, each of the Guarantors waives any defense based on or arising out of any defense of the Company or any other
Guarantor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Company, other than final payment in full in cash of the Obligations. Each of the Guarantors waives any
defense arising out of any such election even though such election operates to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of each of the Guarantors against the Company or any security.
Subject to Section 1410, each of the Guarantors further agrees that its Guarantee with respect to any Security hereunder shall remain in full force and
effect and continue to be irrevocable notwithstanding any petition filed by or against the Company for liquidation or reorganization, the Company becoming insolvent or making an assignment for the benefit of creditors or a receiver or trustee being
appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored or returned by the Trustee or any Holder of any Security, whether as a “voidable preference,” “fraudulent transfer” upon bankruptcy or
65
reorganization of the Company or otherwise, all as though such payment or performance had not been made, until the date upon which the entire Obligation, if any, and
interest on such Security has been, or has been deemed pursuant to the provisions of this Indenture to have been paid in full. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned on any Security, such
Security shall, to the fullest extent permitted by law, be reinstated and deemed paid only by such amount paid and not so rescinded, reduced, restored or returned.
In furtherance of the foregoing and not in limitation of any other right of each of the Guarantors by virtue hereof, upon the failure of the Company to
pay any Obligation when and as the same shall become due, each of the Guarantors hereby promises to and will, upon receipt of written demand by the Trustee or any Holder of the Securities of any series, forthwith pay, or cause to be paid, to the
Holders in cash the amount of such unpaid Obligations, and thereupon the Holders shall, assign (except to the extent that such assignment would render a Guarantor a “creditor” of the Company within the meaning of Section 547 of Title 11 of the United
States Code as now in effect or hereafter amended or any comparable provision of any successor statute) the amount of the Obligations owed to it and paid by such Guarantor pursuant to this Guarantee to such Guarantor, such assignment to be pro rata
to the extent the Obligations in question were discharged by such Guarantor, or make such other disposition thereof as such Guarantor shall direct (all without recourse to the Holders, and without any representation or warranty by the Holders). If
(a) a Guarantor shall make payment to the Holders of all or any part of the Obligations and (b) all the Obligations and all other amounts payable under this Indenture shall be paid in full, the Trustee will, at such Guarantor’s request, execute and
deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Obligations resulting from such payment by such
Guarantor.
Upon payment by any Guarantor of any sums to the Holders, as provided above, all rights of such Guarantor against the Company, arising as a result
thereof by way of right of subrogation or otherwise, shall in all respects be subordinated and junior in right of payment to the prior payment in full in cash of all the Obligations to the Trustee; provided, however, that any right of subrogation that such Guarantor may have pursuant to this Indenture is subject to Section 1408.
A Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations
under this Indenture and its Guarantee without any action required on the part of the Trustee or any Holder; provided that such Guarantor would not, immediately after such
release and discharge, be required to become a Guarantor pursuant to Section 1402:
(1) at any time such Guarantor
is not the Corporation and is sold or disposed of (whether by merger, consolidation or the sale of all or substantially all of its assets) to an entity that is not
66
required to become a Guarantor, if such sale or disposition is otherwise in compliance with this Indenture;
(2) such Guarantor is
designated a Non-Guarantor Entity in accordance with this Indenture; or
(3) the Company effects a
Defeasance or Covenant Defeasance in accordance with Article XIII hereof.
The Company may designate any Person as a “Non-Guarantor Entity” if (i) such Person is directly or indirectly wholly owned by one or more of the Credit
Parties and (ii) such Person, together with all then-existing Non-Guarantor Entities designated pursuant to this clause (ii) on a combined and consolidated basis and taken as a whole, would not constitute a Significant Subsidiary (the foregoing, the
“Non-Guarantor Limitation”). The Company may also, from time to time, remove the designation of any Person as a Non-Guarantor Entity and must remove the designation as to one or
more Non-Guarantor Entities designated pursuant to clause (ii) of the immediately preceding sentence to the extent as of the end of any fiscal quarter such Non-Guarantor Entities exceed the Non-Guarantor Limitation. Any such designation or removal by
the Company shall be evidenced to the Trustee by promptly filing with the Trustee a Company Resolution giving effect to such designation or removal, and in the case of a designation, a certificate of the chief financial officer of the Company (or, in
his or her absence, the principal executive officer, principal accounting officer or treasurer of the Company) certifying that such designation complied with the foregoing provisions. The Company shall promptly file with the Trustee a notice of any
such release of a Guarantor in accordance with this Indenture.
The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request of the Company accompanied by an Officers’
Certificate certifying as to the compliance with this Section.
Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee by such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable
to any Guarantor. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under this Indenture and its Guarantee shall be limited to the maximum aggregate amount which,
after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of, any other Guarantor in respect of the obligations of such Guarantor under its
Guarantee or pursuant to its contribution obligations under this Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance.
Each Guarantee is expressly limited so that in no event, including the acceleration of the Maturity of the Securities, shall the amount paid or agreed to
be paid in respect of interest on the Securities (or fees or other amounts deemed payment for the use of funds) exceed the maximum
67
permissible amount under applicable law, as in effect on the date hereof and as subsequently amended or modified to allow a greater amount of interest (or fees or other
amounts deemed payment for the use of funds) to be paid under such Guarantee. If for any reason the amount in respect of interest (or fees or other amounts deemed payment for the use of funds) required by a Guarantee exceeds such maximum permissible
amount, the obligation to pay interest under such Guarantee (or fees or other amounts deemed payment for the use of funds) shall be automatically reduced to such maximum permissible amount and any amounts collected by any Holder of any Security in
excess of the permissible amount shall be automatically applied to reduce the outstanding principal on such Security.
Neither the Trustee, any Holder nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or take any other steps under
any security for the Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee, such Holder or such other Person is entitled to demand payment and performance by any or all Guarantors
of their liabilities and obligations under their Guarantee.
To evidence its Guarantee set forth in this Article XIV, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor
by an Officer of such Guarantor, and in the case of any New KKR Entity that becomes a Guarantor in accordance with this Indenture, such New KKR Entity’s Guarantee shall be evidenced by the execution and delivery on behalf of such New KKR Entity of a
supplemental indenture hereto by an Officer of such New KKR Entity.
Each Guarantor hereby agrees that its Guarantee set forth in this Article XIV shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Guarantee on any Securities.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates any Security, the Guarantee shall be
valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.
* * *
This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be
deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a
paper-
68
based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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KKR Group Finance Co. IX LLC, as Issuer
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|||
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By:
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/s/ Robert H. Lewin
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||
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Name:
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Robert H. Lewin | ||
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Title:
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Chief Financial Officer | ||
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KKR & Co. Inc., as Guarantor,
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By:
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/s/ Robert H. Lewin
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||
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Name:
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Robert H. Lewin | ||
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Title:
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Chief Financial Officer | ||
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KKR Group Partnership L.P., as Guarantor,
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By:
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/s/ Robert H. Lewin
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||
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Name:
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Robert H. Lewin | ||
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Title:
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Chief Financial Officer | ||
[Signature Page to Indenture]
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The Bank of New York Mellon Trust
Company, N.A., as Trustee
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|||
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By:
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/s/ Manjari Purkayastha
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Name:
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Manjari Purkayastha | ||
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Title:
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Vice President | ||
[Signature Page to Indenture]
SCHEDULE I
GUARANTORS
KKR & Co. Inc., a Delaware corporation
KKR Group Partnership L.P., a Cayman Islands exempted limited partnership
Schedule I-1
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 31, 2021
Supplementing that Certain
INDENTURE
Dated as of March 31, 2021
Among
KKR GROUP FINANCE CO. IX LLC,
THE GUARANTOR PARTIES HERETO
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
4.625% Subordinated Notes due 2061
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
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||
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ISSUANCE OF SECURITIES
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||
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Section 1.01.
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Issuance of Notes; Principal Amount; Maturity; Title.
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2
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Section 1.02.
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Interest.
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3
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Section 1.03.
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Payment.
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4
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Section 1.04.
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Relationship with Base Indenture.
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4
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Section 1.05.
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Amendments to the Indenture.
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4
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ARTICLE 2
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 2.01.
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Definitions.
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4
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ARTICLE 3
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SECURITY FORMS
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Section 3.01.
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Form Generally.
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9
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Section 3.02.
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Form of Note.
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9
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Section 3.03.
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Transfer and Exchange of Global Securities.
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21
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ARTICLE 4
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||
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REMEDIES
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Section 4.01.
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Events of Default.
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22
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Section 4.02.
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Waiver of Past Defaults.
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22
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ARTICLE 5
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REDEMPTION OF SECURITIES
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Section 5.01.
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Optional Redemption.
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23
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ARTICLE 6
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PARTICULAR COVENANTS
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Section 6.01.
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Liens.
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24
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Section 6.02.
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Reserved.
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25
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Section 6.03.
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Financial Reports.
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25
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ARTICLE 7
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OPTION TO DEFER INTEREST PAYMENTS.
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Section 7.01.
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Option to Defer Interest Payments.
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26
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Section 7.02.
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Payment Restrictions During a Deferral Period.
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26
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i
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ARTICLE 8
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SUPPLEMENTAL INDENTURES
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Section 8.01.
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Supplemental Indentures without Consent of Holders of Notes.
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28
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Section 8.02.
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Supplemental Indentures with Consent of Holders of Notes.
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28
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ARTICLE 9
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DEFEASANCE
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Section 9.01.
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Covenant Defeasance.
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30
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ARTICLE 10
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MISCELLANEOUS
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Section 10.01.
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Execution as Supplemental Indenture.
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31
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Section 10.02.
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Not Responsible for Recitals or Issuance of Notes.
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31
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Section 10.03.
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Separability Clause.
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31
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Section 10.04.
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Successors and Assigns.
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31
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Section 10.05.
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Execution and Counterparts.
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32
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Section 10.06.
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Governing Law.
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32
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Section 10.07.
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FATCA
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33
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Section 10.08.
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Agreement by Holders to Treat Notes as Indebtedness for Tax Purposes.
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33
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ii
This First Supplemental Indenture, dated as of March 31, 2021 (the “First Supplemental Indenture”), among KKR Group Finance Co. IX LLC, a limited liability company duly
organized and existing under the laws of the State of Delaware, having its principal office at 30 Hudson Yards, New York, New York 10001 (the “Company”), the Guarantors party hereto (the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as Trustee under the Base Indenture (as hereinafter defined) and hereunder (the “Trustee”), supplements
that certain Indenture, dated as of March 31, 2021, among the Company, the Guarantors named therein and the Trustee (the “Base Indenture” and subject to section 1.04 hereof, together with this First
Supplemental Indenture, the “Indenture”).
RECITALS OF THE COMPANY
The Company and the Guarantors have heretofore executed and delivered to the Trustee the Base Indenture providing for the issuance from time to time of one or more series of the Company’s unsecured debt securities
(herein and in the Base Indenture called the “Securities”), the forms and terms of which are to be determined as set forth in Sections 201 and 301 of the Base Indenture, and the Guarantees thereof by the
Guarantors;
Section 901 of the Base Indenture provides, among other things, that the Company, the Guarantors and the Trustee may enter into indentures supplemental to the Base Indenture for, among other things, the purposes of
(a) establishing the form or terms of Securities of any series as permitted by Sections 201 and 301 of the Base Indenture and (b) adding to or changing any of the provisions to the Base Indenture in certain circumstances; and
The Company desires to create a series of Securities designated as its “4.625% Subordinated Notes due 2061” (the “Notes”) pursuant to the terms of this First Supplemental
Indenture.
The Company has duly authorized the execution and delivery of this First Supplemental Indenture and the Notes to be issued from time to time, as provided for in the Indenture.
Each Guarantor has duly authorized its Guarantee of the Notes and to provide therefor each Guarantor has duly authorized the execution and delivery of this First Supplemental Indenture.
All things necessary have been done to make this First Supplemental Indenture a valid and legally binding agreement of the Company, in accordance with its terms and to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee under the Indenture and duly issued by the Company, the valid and legally binding obligations of the Company.
All things necessary have been done to make the Guarantees, upon execution and delivery of this First Supplemental Indenture, the valid and legally binding obligations of
each Guarantor and to make this First Supplemental Indenture a valid and legally binding agreement of each Guarantor, in accordance with its terms.
Issuance of Securities
(a) On March 31, 2021, the Company shall issue and deliver to the Trustee, and
the Trustee shall authenticate, the Initial Notes substantially in the form set forth in section 3.02 below, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base
Indenture and this First Supplemental Indenture, and with such letters, numbers, or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined by the Officer executing such Notes, as evidenced by the execution of such Notes.
(b) Pursuant to the terms hereof and Sections 201
and 301 of the Base Indenture, the Company hereby creates a series of Securities designated as the “4.625% Subordinated Notes due 2061” of the Company (as amended or supplemented from time to time, that are issued under the Indenture, including
both the Initial Notes and the Additional Notes (as defined below), if any, the “Notes”), which Notes shall be deemed “Securities” for all purposes under the Base Indenture.
(c) The Initial Notes to be issued pursuant to the
Indenture shall be issued and initially limited in aggregate principal amount to $500,000,000 and shall mature on the Stated Maturity, unless the Notes are redeemed prior to that date as described in Article V. The aggregate principal amount of
Initial Notes Outstanding at any time may not exceed $500,000,000, except for Notes issued, authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant to Sections 304, 305,
306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered.
(d) The Company may without the consent of the Holders, issue additional Notes hereunder as part of the same series and on the same terms and conditions (and having the same
Guarantors) and with the same CUSIP, ISIN and Common Code numbers as the Initial Notes initially issued, but may be offered at a different offering price or have a different issue date, initial interest accrual date or initial interest payment
date (“Additional Notes”); provided that if any Additional Notes are issued at a price that causes such Additional Notes to have “original issue discount” within
the meaning of Section 1273 of the United States Internal Revenue Code of 1986, as amended, and regulations of the United States Department of Treasury thereunder (the “Code”) or if any Additional Notes are
not otherwise fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall not have the same CUSIP, ISIN or Common Code number as the Initial Notes.
2
(e) The Notes shall be issued only in book-entry form without coupons in minimum denominations of $25 and any multiple of $25 in excess thereof.
(a) Subject to applicable law and subject to Article 7 of this Supplemental Indenture, interest on the Notes will accrue at an annual rate equal to 4.625%, from, and
including, the date specified on the face of such Note, or, if interest has already been paid, from the last date in respect of which interest has been paid or duly provided for to, but excluding, the next succeeding Interest Payment Date (as
defined below), the maturity date or the redemption date, as the case may be. The amount of interest payable for any interest payment period will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any date on which
interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).
(b) The Company shall pay interest on the Notes quarterly in arrears on January 1, April 1, July 1 and October 1 of each year (each, an “Interest
Payment Date”), commencing July 1, 2021, provided that the final Interest Payment Date of the Notes shall be April 1, 2061.
(c) Interest shall be paid on each Interest Payment Date to the record Holders of the Notes as of the close of business on the Regular Record Date.
(d) Amounts due on the Stated Maturity or earlier redemption or repurchase date of the Notes will be payable at the corporate trust office of the Trustee, initially at 500
Ross Street, 12th Floor, Pittsburgh, PA 15262, Attention: Corporate Finance Group, except as otherwise provided in the Notes. The Company shall make payments of
principal, premium, if any, interest or Redemption Price or repurchase price in respect of the Notes in book-entry form to DTC in immediately available funds, while disbursement of such payments to owners of beneficial interests in Notes in
book-entry form will be made in accordance with the procedures of DTC and its participants in effect from time to time. The Trustee will initially act as Paying Agent for payments with respect to the Notes. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts, except that the Company shall be required to maintain a Paying Agent in each Place of Payment for the
Notes. Neither the Company nor the Trustee shall impose any service charge for any transfer or exchange of a Note. However, the Company may require Holders of the Notes to pay any taxes or other governmental charges in connection with a transfer
or exchange of Notes. All moneys paid by the Company to a Paying Agent for the payment of principal, premium, interest or Redemption Price or repurchase price on Notes which remain unclaimed at the end of two years after such principal, premium,
interest or Redemption Price or repurchase price has become due and payable will be repaid to the Company upon request, and the Holder of such Notes thereafter may look only to the Company for payment thereof.
3
(e) If any Interest Payment Date, Stated Maturity, earlier redemption date or repurchase date falls on a day that is not a Business Day in The City of New York, the
Company shall make the required payment of principal, premium, interest or Redemption Price or repurchase price with respect to the Notes on the next succeeding Business Day as if it were made on the date payment was due, and no interest will
accrue on the amount so payable for the period from and after that Interest Payment Date, Stated Maturity, earlier redemption or repurchase date, as the case may be, to such next succeeding Business Day.
(f) Interest not paid on any payment date will accrue and compound quarterly at a rate per year equal to the rate of interest on the Notes until paid. References to
“interest” include interest accruing on the Notes, interest on deferred interest payments and other unpaid amounts and compounded interest, as applicable and in each case to the extent permitted by applicable law.
All payments of principal of, the Redemption Price or repurchase price (if any) for and interest on the Notes will be payable in U.S. dollars.
The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this First Supplemental Indenture. However, to the extent any provision of the Base Indenture
conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture will govern and be controlling.
For purposes of the Notes and this First Supplemental Indenture, the references in Sections 1001 and 1003 of the Base Indenture to “10:00 a.m. (New York City time) on” shall be replaced with “11:00 a.m. (New York
City time) on.”
(a) the definition of “Business Day” under Section 101 of the Base Indenture shall be amended and restated as follows:
“Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions or trust companies in New York, New York are authorized or obligated by law, regulation or executive
order to close.
Definitions and Other Provisions of General Application
4
For all purposes of this First Supplemental Indenture (except as herein otherwise expressly provided or unless the context of this First Supplemental Indenture otherwise requires):
(a) any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this First Supplemental Indenture;
(b) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision;
(c) “including” means including without limitation;
(d) “dollars” and “$” refer to U.S. dollars; and
(e) unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements and
instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture.
The terms defined in this section 2.01 (except as herein otherwise expressly provided or unless the context of this First Supplemental Indenture otherwise requires) for all purposes of this First Supplemental
Indenture and of any indenture supplemental hereto have the respective meanings specified in this section 2.01. All other terms used in this First Supplemental Indenture that are defined in the Base Indenture, either directly or by reference
therein (except as herein otherwise expressly provided or unless the context of this First Supplemental Indenture otherwise requires), have the respective meanings assigned to such terms in the Base Indenture, as in force at the date of this
First Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this First Supplemental Indenture shall have the meaning assigned to such term
in this First Supplemental Indenture.
“Additional Notes” has the meaning specified in Section 1.01(d).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the
Depositary or DTC, in each case to the extent applicable to such transaction and as in effect from time to time.
“Close of Business” means 5:00 p.m., New York City time.
“Code” has the meaning specified in section 1.01(c).
“Commission” means the Securities and Exchange Commission or any successor entity.
“Covenant Defeasance” has the meaning specified in Section 9.01(b).
5
“Credit Party Jurisdiction” means a jurisdiction where a Credit Party is incorporated or considered to be a resident for tax purposes, if other than the United States.
“DTC” means The Depository Trust Company, a New York corporation.
“Event of Default” has the meaning specified in section 4.01(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Indebtedness” means indebtedness incurred under (i) the Amended and Restated Credit Agreement dated as of December 7, 2018 among Kohlberg Kravis Roberts & Co.
L.P. and the KKR Group Partnerships (as defined therein), as borrowers, the other borrowers from time to time party thereto, the lenders party thereto, and HSBC Bank USA, National Association, as administrative agent; (ii) the Third Amended and
Restated 5-Year Revolving Credit Agreement dated as of March 20, 2020 among KKR Capital Markets Holdings L.P., certain subsidiaries of KKR Capital Markets Holdings L.P., as borrowers, the lenders party thereto, and Mizuho Bank, Ltd., as
administrative agent; and (iii) the 364-Day Revolving Credit Agreement dated as of April 10, 2020 among KKR Capital Markets Holdings L.P. and certain subsidiaries of KKR Capital Markets Holdings L.P., as borrowers, the lenders party thereto, and
Mizuho Bank Ltd., as administrative agent, and in the case of each of clauses (i), (ii) and (iii) above, any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures, notes, debentures or
credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture
that alters the maturity or interest rate thereof, provided that the aggregate principal amount of Existing Indebtedness outstanding at any one time shall not exceed $2.750 billion.
“FATCA Withholding Tax” shall mean any Tax withheld or deducted pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471
through 1474 of the Code (or any amended or successor provisions that are substantively comparable), any regulations or agreements thereunder or official interpretations thereof, or any intergovernmental agreement between the United States and
another jurisdiction facilitating the implementation thereof (or any law, regulation or other official guidance implementing such an intergovernmental agreement).
“Indebtedness” shall mean (a) any obligation of, or any obligation guaranteed by, the Company or any Guarantor for which such Person is responsible or liable as obligor or
otherwise including principal, premium and interest (whether accruing before or after filing of any petition in bankruptcy or any similar proceedings by or against us and whether or not allowed as a claim in bankruptcy or similar proceedings) for
(i) indebtedness for money borrowed, (ii) indebtedness evidenced by securities, bonds, debentures, notes or other similar written instruments, (iii) any deferred obligation for the payment of the purchase price or conditional sale obligation of
property or assets acquired other than in the ordinary course of business, (iv) all obligations for the
6
reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction, (v) all obligations under “keep-well” agreements required by insurance regulators or (vi) any obligation referred to in (i)
through (v) above of other persons secured by any lien on any property or asset of the Credit Parties (to the extent of the value of such property or asset subject to such lien) and (b) all indebtedness for obligations to make payment in respect
of derivative products such as interest and foreign exchange rate contracts, commodity contracts (including future or options contracts), swap agreements, cap agreements, repurchase and reverse repurchase agreements and similar arrangements,
whether outstanding on the first issuance of the Notes or thereafter created, assumed or incurred.
“Indebtedness Ranking Junior to the Notes” shall mean any Indebtedness, whether outstanding on the date of the first issuance of the Notes or thereafter created, assumed or
incurred, which specifically by its terms ranks junior to and not equally with or prior to the Notes (and any Indebtedness Ranking on a Parity with the Notes) in right of payment upon the Company’s or any Guarantor’s dissolution, winding-up,
liquidation, reorganization, or similar events. The securing of any Indebtedness in compliance with the Indenture, otherwise constituting Indebtedness Ranking Junior to the Notes, shall not be deemed to prevent such Indebtedness from constituting
Indebtedness Ranking Junior to the Notes.
“Indebtedness Ranking on a Parity with the Notes” shall mean Indebtedness, whether outstanding on the date of first issuance of the Notes or thereafter created, assumed or
incurred, which specifically by its terms ranks equally with and not prior to the Notes in right of payment upon the Company’s or any Guarantor’s dissolution, winding-up, liquidation, reorganization or similar events. The securing of any
Indebtedness in compliance with the Indenture, otherwise constituting Indebtedness Ranking on a Parity with the Notes, shall not be deemed to prevent such Indebtedness from constituting Indebtedness Ranking on a Parity with the Notes.
“Initial Notes” means Notes in an aggregate principal amount of up to $500,000,000 initially issued under this First Supplemental Indenture in accordance with section 1.01(c).
“Interest Payment Date” has the meaning specified in Section 1.02(b).
“KKR Group” means the KKR Group Partnership, the direct and indirect parents (including, without limitation, general partners) of the KKR Group Partnership (the “Parent Entities”), any direct or indirect subsidiaries of the Parent Entities or the KKR Group Partnership, the general partner or similar controlling entities of any investment or vehicle that is managed,
advised or sponsored by the KKR Group (“KKR Fund”) and any other entity through which any of the foregoing directly or indirectly conduct its business, but shall exclude any company in which a KKR Fund has
an investment.
“KKR Group Partnership” means KKR Group Partnership L.P.
7
“Notes” has the meaning specified in section 1.01(b).
“Optional Deferral Period” means the period commencing on an Interest Payment Date with respect
to which the Company defers interest pursuant to Section 7.01 and ending on the earlier of (i) the fifth anniversary of that Interest Payment Date and (ii) the next Interest Payment Date on which the Company has paid all deferred and unpaid
amounts (including compounded interest on such deferred amounts) and all other accrued interest on the Notes.
“Permitted Liens” means (a) liens on voting stock or profit participating equity interests of any Subsidiary existing at the time such entity becomes a direct or indirect
Subsidiary of KKR & Co. Inc. (the “Parent”) or is merged into a direct or indirect Subsidiary of the Parent (provided such liens are not created or incurred in
connection with such transaction and do not extend to any other Subsidiary), (b) statutory liens, liens for taxes or assessments or governmental liens not yet due or delinquent or which can be paid without penalty or are being contested in good
faith, (c) other liens of a similar nature as those described in subclauses (a) and (b) above, and (d) liens granted under Existing Indebtedness.
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political
subdivision or an agency or instrumentality thereof.
“Prospectus Supplement” means the Company’s prospectus supplement, dated as of March 24, 2021, relating to the Notes.
“Rating Agency Event” means that any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act, that then publishes a
rating for the Company (a “rating agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Notes, which amendment, clarification or change results in (a) the shortening of the length of time the
Notes are assigned a particular level of equity credit by that rating agency as compared to the length of time they would have been assigned that level of equity credit by that rating agency or its predecessor on the initial issuance of the
Notes; or (b) the lowering of the equity credit (including up to a lesser amount) assigned to the Notes by that rating agency compared to the equity credit assigned by that rating agency or its predecessor on the initial issuance of the Notes.
“Registrar” means the Security Registrar for the Notes, which shall initially be The Bank of New York Mellon Trust Company, N.A., or any successor entity thereof, subject to
replacement as set forth in the Base Indenture.
“Regular Record Date” for interest payable in respect of any Note on any Interest Payment Date means the 15th calendar day immediately preceding the relevant Interest Payment Date (whether or not a Business Day).
“Relevant Jurisdiction” means the United States, any Credit Party Jurisdiction, and any Successor Person Jurisdiction.
8
“Senior Indebtedness” shall mean all Indebtedness, whether outstanding on the date of the first issuance of the Notes or thereafter
created, assumed or incurred, except Indebtedness Ranking on a Parity with the Notes or Indebtedness Ranking Junior to the Notes, and any deferrals, renewals or extensions of such Senior Indebtedness. Senior Indebtedness does not include
obligations to trade creditors created or assumed by the Company or the Guarantors in the ordinary course of business, which will rank pari passu with the Notes in right of payment upon liquidation.
“Stated Maturity” means April 1, 2061.
“Successor Person Jurisdiction” means a jurisdiction where a Successor Person is incorporated or considered to be a resident for tax purposes, if other than the United States.
“Tax Redemption Event” has the meaning specified in Section 5.01(b)(ii).
(a) The Notes shall be in substantially the form set forth in section 3.02 of this Article 3, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Base Indenture and this First Supplemental 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 applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistent herewith, be determined by the Officer executing such Notes, as evidenced by the execution thereof. All Notes shall be in book-entry
form.
(b) The Notes shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officer of the
Company executing such Notes, as evidenced by the execution of such Notes.
(c) Upon their original issuance, the Notes shall be issued in the form of one or more Global Securities in definitive, book-entry form without interest coupons. Each
such Global Security shall be duly executed by the Company, authenticated and delivered by the Trustee and shall be registered in the name of DTC as Depositary, or its nominees, and deposited with the Trustee, as custodian for DTC. Beneficial
interests in the Global Securities will be shown on, and transfers will only be made through, the records maintained by DTC and its participants.
[FORM OF FACE OF NOTE]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
9
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
KKR GROUP FINANCE CO. IX LLC
4.625% SUBORDINATED NOTE DUE 2061
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No.
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Principal Amount $
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CUSIP NO. 48253M 104
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|
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ISIN NO. US48253M1045
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KKR Group Finance Co. IX LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes
any Successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or registered assigns,
10
the principal sum of __________U.S. dollars ($ ), or such other principal amount as shall be set forth in the Schedule of Increases and Decreases in Note attached hereto, on April 1, 2061 (the “Maturity Date”) and to pay interest thereon, from March 31, 2021, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be
January 1, April 1, July 1 and October 1 of each year, commencing July 1, 2021, at the per annum rate of 4.625% (the “Note Interest Rate”), until the principal hereof is paid or made available for payment.
For the purposes of this Note, the term “Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions or trust companies in New
York, New York are authorized or obligated by law, regulation or executive order to close.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business
on the Regular Record Date for such interest, which shall be the 15th calendar day immediately preceding the relevant Interest Payment Date (whether or not a
Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes not less than 10 days prior to the Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, all as more fully provided in the Indenture. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Payment of principal of, and premium, if any, and interest on this Note will be made at the Trustee, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the
payment of public and private debts. With respect to Global Securities, the Company will make such payments by wire transfer of immediately available funds to DTC, or its nominee, as registered owner of the Global Securities. With respect to
certificated Notes, the Company will make such payments, subject to surrender of such Note at the Trustee, except in the case of installments of interest, by wire transfer of immediately available funds to a United States Dollar account
maintained in New York, New York to each Holder of an aggregate principal amount of Notes in excess of U.S. $5,000,000 that has furnished wire instructions in writing to the Trustee no later than 15 days prior to the relevant payment date. If a
Holder of a certificated Note (i) does not furnish such wire instructions as provided in the preceding sentence or (ii) holds U.S. $5,000,000 or less aggregate principal amount of Notes, the Company will make such payments by mailing or causing
to be mailed a check to such Holder’s registered address.
The Notes constitute the direct, unconditional, unsecured and subordinated general obligations of the Company and shall at all times rank junior in right of payment
11
to all existing and future Senior Indebtedness of the Company, rank equal in right of payment with all existing and future Indebtedness Ranking on a Parity with the Notes of the Company, be effectively subordinated to all existing and future
secured Indebtedness of the Company, to the extent of the value of the assets securing such Indebtedness and be structurally subordinated in right of payment to all existing and future Indebtedness, liabilities and other obligations (including
policyholder liabilities and other payables) of each Subsidiary of the Company that is not itself the Company.
The Securities are not redeemable prior to the Maturity Date, except as set forth on the reverse of this Note and will not be subject to any sinking fund.
Subject to, and in accordance with as set forth on the reverse of this Note, the Company shall have the right, at any time and from time to time, to defer the payment of interest on the Notes.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
12
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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KKR Group Finance Co. IX LLC
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
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Title:
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13
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:___________
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By:
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Authorized Signatory
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14
[FORM OF REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue of securities of the Company designated as its “4.625%
Subordinated Notes due 2061” (herein called the “Notes”), issued under a First Supplemental Indenture, dated as of March 31, 2021 (the “First Supplemental Indenture”),
to an indenture, dated as of March 31, 2021 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Base Indenture” and herein with the First Supplemental
Indenture, collectively, the “Indenture”), among the Company, the Guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The aggregate principal amount of the Initial Notes Outstanding at any time may not exceed $500,000,000 in
aggregate principal amount, except for, or in lieu of, other Notes of the series pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never
to have been authenticated and delivered. The First Supplemental Indenture pursuant to which this Note is issued provides that Additional Notes may be issued thereunder.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Note and the Indenture, the
provisions of the Indenture shall govern.
2. Optional Redemption. (a) In the manner and under the circumstances set forth in the Indenture, the Company may, at its
option, redeem the Notes on notice given not more than 60 days nor less than 15 days prior to such date of redemption in increments of $25 principal amount:
(i) in whole at any time or in part from time to time on or after April 1, 2026, at a Redemption Price equal to the principal amount of any Notes
being redeemed plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the date of redemption; provided that if the Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Notes
must remain outstanding after giving effect to such redemption;
(ii) in connection with a Tax Redemption Event as provided under Section 5.01(b) in the Indenture; or
(iii) in whole, but not in part, at any time prior to April 1, 2026, within 90 days of the occurrence of a Rating Agency Event, at a Redemption
Price equal to 102% of the principal amount of the Notes being redeemed plus any accrued and unpaid interest (including compounded interest, if any) to but excluding the date of redemption.
15
(b) If less than all of the Notes are to be redeemed, the principal amount of such Notes held by each beneficial owner of such Notes to be redeemed will be selected
in accordance with the procedures of the depository. The Notes and portions of Notes will be selected in amounts of $25 and multiples of $25 in excess of $25. If the Notes are held in definitive form, the Trustee will so select by lot.
(c) The Company shall give the Trustee notice of the Redemption Price with respect to any redemption pursuant to the preceding paragraph as soon as practicable after
the calculation thereof and the Trustee shall have no responsibility for such calculation.
(d) Any notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a
securities offering or other corporate transaction.
3. Option to Defer Interest Payments. Subject to, and in accordance with, the Indenture, the Company shall have the right,
at any time and from time to time, to defer the payment of interest on the Notes.
4. Global Security. If this Note is a Global Security, then, in the event of a deposit or withdrawal of an interest in this
Note, including an exchange, transfer, redemption, repurchase or conversion of this Note in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with
the Applicable Procedures.
5. Defaults and Remedies. If an Event of Default shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the Indenture. Upon payment of the amount of principal so declared due and payable, all obligations of the Company in respect of the payment of the principal of and interest
on the Notes shall terminate.
No Holder of Notes shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver, assignee, trustee, liquidator or sequestrator (or
similar official) or for any other remedy hereunder (except actions for payment of overdue principal of, and premium, if any, or interest on such Notes in accordance with its terms), unless (i) such Holder has previously given written notice to
the Trustee of a continuing Event of Default, specifying an Event of Default, as required under the Indenture; (ii) the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; (iii) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request; (iv) the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity; and (v) 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 aggregate principal amount of the Outstanding Notes, it being understood and intended that no one or more of such
16
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the 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 the Indenture, except in the manner provided in the Indenture and for the equal and ratable benefit of all of such Holders.
The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal of, and premium, if any, or interest hereon, on or after the respective due dates
expressed or provided for herein.
6. Amendment, Supplement and Waiver. The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Outstanding Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or such other Note. Certain
modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Note affected.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair (without the consent of the Holder hereof) the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this Note at the times, places and rate, and in the coin or currency, herein prescribed.
7. Registration and Transfer. As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registerable on the Security Register. Upon surrender for registration of transfer of this Note at the office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of like tenor and principal amount. As provided in the Indenture and subject to certain limitations therein set forth,
at the option of the Holder, this Note may be exchanged for one or more new Notes of any authorized denominations and of like tenor and principal amount, upon surrender of this Note at such office or agency. Upon such surrender by the Holder, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of like tenor and principal amount. Every Note presented or
surrendered for registration of transfer or for exchange shall be duly endorsed (if so required by the Company or the Trustee), or be accompanied by a written instrument of transfer in form satisfactory to the
17
Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing. No service charge shall be made for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, a Guarantor or the Trustee may treat the Person in whose name such Note is
registered as the owner thereof for all purposes (except as otherwise provided in the Indenture), whether or not such Note be overdue, and neither the Company, the Guarantors, the Trustee nor any agent of the Company, a Guarantor or the Trustee
shall be affected by notice to the contrary.
8. Guarantee. As expressly set forth in the Base Indenture, payment of this Note is jointly and severally and fully and
unconditionally guaranteed, on a subordinated basis, by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the
circumstances specified in the Base Indenture.
9. Governing Law. THE INDENTURE, THIS SECURITY AND THE GUARANTEES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE COMPANY, THE GUARANTORS AND THE TRUSTEE AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, AND THE COMPANY, THE GUARANTORS AND
HOLDERS OF THE SECURITIES AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE SECURITIES, MAY BE INSTITUTED, BROUGHT AND ENFORCED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR, OTHER
THAN WITH RESPECT TO A CAUSE OF ACTION ARISING UNDER THE SECURITIES ACT, IF SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, THE SUPREME COURT OF NEW YORK COUNTY (COMMERCIAL DIVISION) IN THE STATE OF NEW YORK OF THE
STATE OF NEW YORK), WHICH WILL BE THE EXCLUSIVE FORUM FOR ANY SUCH ACTIONS, SUITS OR PROCEEDINGS, EXCEPT THAT ANY ACTION, SUIT OR PROCEEDING ASSERTING A CAUSE OF ACTION ARISING UNDER THE EXCHANGE ACT MAY ALSO BE BROUGHT AND ENFORCED IN ANY
FEDERAL DISTRICT COURT OF THE UNITED STATES, WHICH WILL BE THE EXCLUSIVE FORUM FOR SUCH ACTIONS, SUITS OR PROCEEDINGS. HOLDERS OF THE SECURITIES WILL BE DEEMED TO HAVE CONSENTED TO THE JURISDICTION OF SUCH COURTS AND HAVE WAIVED ANY OBJECTION
THAT SUCH COURTS REPRESENT AN INCONVENIENT FORUM FOR ANY SUCH SUIT, ACTION OR PROCEEDING.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM (= tenant in common)
TEN ENT (= tenants by the entireties (Cust))
JT TEN (= joint tenants with right of survivorship and not as tenants in common)
UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act )
Additional abbreviations may also be used though not in the above list.
19
[SCHEDULE OF INCREASES AND DECREASES IN NOTE
KKR GROUP FINANCE CO. IX LLC
4.625% Subordinated Note due 2061
The initial principal amount of this Note is $ . The following increases or decreases in this Note have been made:
|
Date
|
Amount of
decrease in
Principal Amount
of this Note
|
Amount of
increase in
Principal Amount
of this Note
|
Principal Amount
of this Note
following such
decrease or
increase
|
Signature of
authorized officer
of Trustee]1
|
||||
1 Insert for Global Securities only
20
(a) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture
(including applicable restrictions on transfer set forth in the Indenture and in the Global Security) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Security to another Global Security shall
deliver to the Security Registrar a duly completed Assignment Form in the form attached to the Global Security, any applicable certifications or opinions required by the Assignment Form and a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global Security. The Security Registrar shall, in accordance with such instructions, instruct the Depositary to
credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer the beneficial interest in the Global Security being transferred.
(b) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Security Registrar
shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the
Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being transferred.
21
Remedies
(a) “Event of Default” means, wherever used herein with respect to the Notes, 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):
(i) an Event of Default pursuant to Section 501 of the Base Indenture;
(ii) the Company’s failure to pay any interest, including compounded interest, on the Notes when due and payable after taking into account any
Optional Deferral Period, continued for 30 days; or
(iii) the Company’s failure to pay the Redemption Price when due in connection with a Tax Redemption Event or a Rating Agency Event.
(b) If the Company does not give a timely written notice of its election to commence or continue a deferral period and fails to pay interest when due, any holder of
Notes may seek to enforce its obligation to make the missed interest payment, including through legal process. However, there is no right of acceleration except upon the occurrence of an Event of Default as described above.
(c) If the Company gives a timely written notice of its election to commence or continue a deferral period on any interest payment date (and, if such notice continues
a deferral period, the deferral period has not continued for five years), then no default arises from the Company’s non-payment of interest on such interest payment date.
(a) Section 512 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 512 in the Base Indenture shall instead
be deemed to refer to this Section 4.02.
(b) The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past
Default hereunder with respect to the Notes and its consequences, except a default
(i) in the payment of the principal of or interest on any Note; or
(ii) in respect of a covenant or provision hereof or of the Base Indenture which under Article 8 hereof or under Article IX of the Base Indenture
cannot be modified or amended without the consent of the Holder of each Outstanding Note affected, provided that there had been paid or deposited with the Trustee a sum sufficient to pay all amounts due
to the Trustee and to
22
reimburse the Trustee for any and all fees, expenses and disbursements advanced by the Trustee, its agents and its counsel incurred in connection with such default or Event of Default.
(c) Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
First Supplemental Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Redemption of Securities
(a) The Company may, at its option, redeem the Notes on notice given not more than 60 days nor less than 15 days prior to such date of redemption in increments of
$25 principal amount:
(i) in whole at any time or in part from time to time on or after April 1, 2026, at a Redemption Price equal to the principal amount of any Notes
being redeemed plus accrued and unpaid interest (including compounded interest, if any) to, but excluding, the date of redemption; provided that if the Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Notes
must remain outstanding after giving effect to such redemption;
(ii) as provided below under Section 5.01(b); or
(iii) in whole, but not in part, at any time prior to April 1, 2026, within 90 days of the occurrence of a Rating Agency Event, at a Redemption
Price equal to 102% of the principal amount of the Notes being redeemed plus any accrued and unpaid interest (including compounded interest, if any) to but excluding the date of redemption.
(b) Tax Redemption. (i) If a Tax Redemption Event occurs prior to the maturity date of the Notes, the Company may redeem
the Notes, in whole but not in part, within 120 days of the occurrence of a Tax Redemption Event at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but excluding, the
redemption date.
(ii) “Tax Redemption Event” means that the Company will have received an opinion of counsel of recognized
standing with respect to U.S. federal income tax matters or an opinion of a “Big Four” accounting firm (or successor thereto) that, in each case, is experienced in such matters to the effect that, as a result of any:
(A) amendment to, or change in (including any promulgation, enactment, execution or modification of) the laws or regulations of the
23
United States or any political subdivision or taxing authority of or in the United States that is enacted or becomes effective after the initial issuance of the Notes;
(B) proposed change in those laws or regulations that is announced after the initial issuance of the Notes;
(C) official administrative pronouncement (including a private letter ruling, notice, technical advice memorandum or similar pronouncement) or
judicial decision or administrative action or other official pronouncement interpreting or applying those laws or regulations enumerated in the preceding bullet points, by any court, governmental agency or regulatory authority that is announced
after the initial issuance of the Notes; or
(D) threatened challenge asserted in connection with an audit of us, or a threatened challenge asserted in writing against any taxpayer that
has raised capital through the issuance of securities that are substantially similar to the Notes, which challenge is asserted against us or becomes publicly known on or after the initial issuance of the Notes;
there is more than an insubstantial increase in the risk that interest accruable or payable by the Company on the Notes is not, or within 365 days of the date of the opinion will not be, deductible by the Company in whole or in part, for U.S.
federal income tax purposes.
(c) If less than all of the Notes are to be redeemed, the principal amount of such Notes held by each beneficial owner of such Notes to be redeemed will be selected in accordance with the procedures of the depository. The Notes and portions of Notes will be selected in amounts of $25 and multiples of $25 in excess of $25. If the Notes are held in definitive form,
the Trustee will so select by lot.
(d) The Company shall give the Trustee notice of the Redemption Price with respect to any redemption pursuant to the preceding paragraph as soon as practicable after
the calculation thereof and the Trustee shall have no responsibility for such calculation.
(e) Any notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a
securities offering or other corporate transaction.
The Credit Parties shall not create, assume, incur or guarantee any indebtedness for money borrowed that is secured by a pledge, mortgage, lien or other encumbrance
24
(other than Permitted Liens) on any voting stock or profit participating equity interests of their respective Subsidiaries (to the extent of their ownership of such voting stock or profit participating equity interests) or any entity that
succeeds (whether by merger, consolidation, sale of assets or otherwise) to all or any substantial part of the business of any of such Subsidiaries, without providing that the Notes (together with, if the Credit Parties shall so determine, any
other indebtedness of, or guarantee by, the Credit Parties ranking equally with the Notes and existing as of the closing of the offering of the Notes or thereafter created) will be secured equally and ratably with or prior to all other
indebtedness secured by such pledge, mortgage, lien or other encumbrance on the voting stock or profit participating equity interests of any such entities. This Section 6.01 shall not limit the ability of the Credit Parties to incur indebtedness
or other obligations secured by liens on assets other than the voting stock or profit participating equity interests of their respective Subsidiaries.
(a) Section 704 of the Base Indenture shall apply to the reports, information, and documents delivered under this Section 6.03.
(i) For so long as the Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide (or
cause its Affiliates to provide) to the Trustee, unless available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (or successor system) (“EDGAR”), within 15 days after the
Parent files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Parent may file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. The Trustee may conclusively presume, and shall incur no liability in such presumption, that the Parent has not filed any such
reports, information, documents and other reports with the Commission that are not available on EDGAR unless and until it shall have received written notice from the Company to the contrary.
(ii) Delivery of such reports, information and documents to the Trustee shall be 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 Company’s compliance with any of the covenants contained in the Indenture (as to which the Trustee
will be entitled to conclusively rely upon an Officer’s Certificate). The Trustee shall have no obligation to determine if and when the Company’s information is available on EDGAR and the Trustee shall have no obligation to obtain any reports
that are posted on EDGAR.
25
Option To Defer Interest Payments.
(a) So long as no Event of Default with respect to the Notes has occurred and is continuing, the Company may, on one or more occasions, defer interest payments on the
Notes for one or more Optional Deferral Periods of up to five consecutive years, provided that no Optional Deferral Period shall extend beyond April 1, 2061, any earlier accelerated maturity date arising from an Event of Default or any other
earlier repurchase or redemption of the Notes.
(b) During any Optional Deferral Period, interest shall continue to accrue on the Notes, and deferred interest payments shall accrue additional interest at the then
applicable interest rate on the Notes, compounded quarterly as of each Interest Payment Date to the extent permitted by applicable law. During any Optional Deferral Period, the Company shall be prohibited from paying current interest on the Notes
until all accrued and unpaid deferred interest plus any accrued interest thereon has been paid. No interest otherwise due during an Optional Deferral Period shall be due and payable on the Notes until the end of such Optional Deferral Period
except upon an acceleration, repurchase or redemption of the Notes during such deferral period.
(c) At the end of five years following the commencement of any Optional Deferral Period, the Company shall pay all accrued and unpaid deferred interest, including
compounded interest thereon if it has not been paid before that time. If, at the end of any Optional Deferral Period, the Company shall have paid all deferred interest due on the Notes, including compounded interest, the Company may again defer
interest payments on the Notes pursuant to this Section 7.01.
(d) The Company shall give written notice of its election to commence or continue any Optional Deferral Period to the Trustee and the Holders of the Notes at least
one Business Day and not more than 60 Business Days before the next Interest Payment Date.
(a) After the commencement of an Optional Deferral Period, until all accrued and unpaid interest on the Notes has been paid, the Company and the Guarantors will not:
(i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the
Company’s or the Guarantors’ equity interests (which includes common and preferred stock);
(ii) make any payment of principal, interest or premium on or repay, repurchase or redeem any Indebtedness Ranking on a Parity with the Notes or
Indebtedness Ranking Junior to the Notes; or
26
(iii) make any guarantee payments with respect to any guarantee by the Company or any Guarantor of any securities of any of their respective
subsidiaries if such guarantee ranks pari passu with or junior in right of payment to the Notes.
None of the foregoing, however, shall restrict:
(i) pro rata distributions of cash in respect of income tax liabilities pursuant to the organizational documents of the Company and KKR Group
Partnership, as such documents were in effect as of the closing of the offering of the Notes;
(ii) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, the Company’s or the
Guarantors’ equity interests where the dividend equity interests or equity interests issuable upon exercise of such options, warrants or other rights is the same equity interests as that on which the dividend or distribution is being paid or
ranks equally with or junior to such equity interests;
(iii) any declaration of a dividend in connection with the implementation of a stockholder’s rights plan, or the issuance of equity interests
under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto;
(iv) as a result of a reclassification of any series or class of the Company’s or the Guarantors’ equity interests or the exchange or conversion
of one class or series of the Company’s or the Guarantors’ equity interests for or into another class or series of the Company’s or the Guarantors’ equity interests;
(v) the purchase of fractional interests in shares of the Company’s or the Guarantors’ equity interests pursuant to an acquisition or the
conversion or exchange provisions of such equity interests or the security being converted or exchanged;
(vi) purchases or acquisitions, including the net settlement, of shares of the Company’s or the Guarantors’ equity interests in connection with
any employment contract, benefit plan, equity incentive plan or other similar arrangement with or for the benefit of directors, officers, agents, consultants or employees or satisfaction of the Company’s and the Guarantors’ obligations under any
dividend reinvestment plan or director, officer, agent, consultant or employee stock purchase plans;
(vii) any exchange, redemption or conversion of any class or series of the Company’s or the Guarantors’ equity interests, or the equity interests
of one of their respective subsidiaries, for any other class or series of the Company’s or the Guarantors’ equity interests, or of any class or series of their respective Indebtedness for any class or series of equity interests;
27
(viii) purchases or acquisitions of shares of the Company’s or the Guarantors’ equity interests in connection with satisfaction of the Company’s
or the Guarantors’ obligations under any contract or security entered into before and not entered into in anticipation of the commencement of the optional deferral period in compliance with the terms of the Indenture;
(ix) payment of current or deferred interest on the Company’s or any Guarantor’s Indebtedness Ranking on a Parity with the Notes or Indebtedness
Ranking Junior to the Notes made pro rata to the amounts due on such Indebtedness Ranking on a Parity with the Notes or Indebtedness Ranking Junior to the Notes and the Notes and (ii) payment of principal or current or deferred interest on the
Company’s or any Guarantor’s Indebtedness Ranking on a Parity with the Notes or Indebtedness Ranking Junior to the Notes that, if not made, would cause a breach of the terms of the instrument governing such Indebtedness Ranking on a Parity with
the Notes or Indebtedness Ranking Junior to the Notes;
(x) transfers to effect the exchange of direct or indirect interests in KKR Group Partnership for securities of the Parent or payments in cash as
provided in the equity awards therefor; and
(xi) distributions of carried interest by KKR Group Partnership to KKR Associates Holdings LP pursuant to the organizational documents of KKR
Group Partnership, as such document was in effect as of the closing of the offering of the Notes.
Notwithstanding the foregoing, the terms of the Notes will not restrict in any manner the ability of any of the Parent’s subsidiaries to pay dividends or make any distributions to the Parent or to any of the Parent’s
other subsidiaries.
For the purposes of the Base Indenture and this First Supplemental Indenture, no amendment to cure any ambiguity, defect or inconsistency in this First Supplemental Indenture, the Base Indenture or the Notes made
solely to conform this First Supplemental Indenture, the Base Indenture or the Notes to the Description of the Notes contained in the Company’s Prospectus Supplement to the extent that such provision in the Description of the Notes was intended
to be a verbatim recitation of a provision of this First Supplemental Indenture, the Base Indenture or the Notes, shall be deemed to adversely affect the interests of the Holders of any Notes.
28
(a) Section 902 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 902 in the Base Indenture shall instead
be deemed to refer to this Section 8.02.
(b) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange for the Notes), by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company, the Guarantors 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 the Indenture or of modifying in any manner the rights of the Holders of such Notes under the Indenture;
provided, however, no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Note;
(ii) reduce the principal amount of any Note which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 of the Base Indenture, or reduce the rate of or extend the time of payment of interest on any Note;
(iii) modify the subordination provisions of the Notes in any manner adverse to the Holders;
(iv) reduce any premium payable upon the redemption of or change the date on which any Note may or must be redeemed;
(v) change the coin or currency in which the principal of or premium, if any, or interest on any Note is payable;
(vi) change the date on which any Note may or must be redeemed;
(vii) impair the right of any Holder to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment, on or after the redemption date or a repurchase price payment date, as applicable);
(viii) reduce the percentage in principal amount of the Outstanding Notes the consent of whose Holders is required for modification or amendment
of this First Supplemental Indenture or the Base Indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Base Indenture or this First Supplemental Indenture or certain defaults thereunder
and hereunder and their consequences) provided for in the Base Indenture and this First Supplemental Indenture;
29
(ix) modify any of the provisions of this Section 8.02 or Section 512 or Section 1005 of the Base Indenture, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note 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 8.02 and Section 1005 of
the Base Indenture, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(7) of the Base Indenture;
(xi) modify clauses (a) through (j) above.
(c) It shall not be necessary for any Act of Holders under this Section 8.02 to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
(d) A supplemental indenture which changes or eliminates any covenant or other provision of the Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities other than the Notes, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of the Notes.
(e) In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Notes may, on behalf of the Holders of all Notes, and subject to
and in accordance with the provisions of Section 1005 of the Base Indenture, waive compliance with the Credit Parties’ covenants described under Sections 6.01 and 6.03 of this First Supplemental Indenture and Article VIII and Section 1402 of the
Base Indenture (other than any covenant, a modification to which under clause (e) of this Section 8.02 would require the consent of the Holder of each Outstanding Note affected thereby).
(a) Section 1303 of the Base Indenture shall not apply to the Notes, and, with respect to the Notes, any reference to Section 1303 in the Base Indenture shall instead
be deemed to refer to this Section 9.01.
(b) Upon the Company’s exercise of its option, if any, to have Section 1303 of the Base Indenture applied to the Notes, or if Section 1303 of the Base Indenture shall
otherwise apply to the Notes, (1) the Company and the Guarantors shall be released from their respective obligations and any covenants provided pursuant to Article 6 of this First
30
Supplemental Indenture and Section 301(18), Section 801, Section 901(1) or Section 901(12) and Article XIV of the Base Indenture for the benefit of the Holders of the Notes and (2) the occurrence of any event specified in Section 501(4) and
Section 501(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Notes and the related Guarantees as provided in Section 1303 of the Base Indenture on and after the date the conditions set forth in
Section 1304 of the Base Indenture are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to the Notes and Guarantees thereof, each of
the Company and the Guarantors 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, whether directly or indirectly by reason of any reference elsewhere herein
or in the Base Indenture to any such Section or by reason of any reference in any such Section to any other provision herein or in the Base Indenture or in any other document, but the remainder of the Base Indenture, this First Supplemental
Indenture and such Notes and Guarantees thereof shall be unaffected thereby.
Miscellaneous
This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture and, as provided in the Base Indenture, this First Supplemental Indenture forms a part thereof.
The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture or of the Securities or the Guarantees. The Trustee shall not be accountable for the use or
application by the Company of the Notes or the proceeds thereof.
In case any provision in this First Supplemental Indenture or in the Notes 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.
All covenants and agreements in this First Supplemental Indenture by the Company and the Guarantors shall bind their respective successors and assigns, whether so expressed or not. All agreements of the Trustee in
this First Supplemental Indenture shall bind its successors and assigns, whether so expressed or not.
31
This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and all such counterparts shall together constitute but one and the same
instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this First Supplemental Indenture or any document to be signed in connection with this First Supplemental Indenture shall be deemed
to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a
paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
This First Supplemental Indenture, the Notes and the Guarantees shall be governed by, and construed in accordance with, the laws of the State of New
York. The Company, the Guarantors and the Trustee agree that any legal suit, action or proceeding arising out of or relating to the Indenture, and the Company, the Guarantors and Holders of the Notes agree that any legal suit, action or
proceeding arising out of or relating to the Notes, may be instituted, brought and enforced in the United States District Court for the Southern District of New York (or, other than with respect to a cause of action arising under the Securities
Act, if such court does not have jurisdiction over such action, suit or proceeding, the Supreme Court of New York County (Commercial Division) in the State of New York of the State of New York), which will be the exclusive forum for any such
actions, suits or proceedings, except that any action, suit or proceeding asserting a cause of action arising under the Exchange Act may also be brought and enforced in any federal district court of the United States, which will be the
exclusive forum for such actions, suits or proceedings. Holders of the Notes will be deemed to have consented to the jurisdiction of such courts and have waived any objection that such courts represent an inconvenient forum for any such suit,
action or proceeding.
32
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”), the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law (and shall timely pay the amounts so
withheld or deducted to the applicable governmental authority) for which The Bank of New York Mellon shall not have any liability, except in cases of gross negligence or willful misconduct. Each of the Company and the Trustee agrees to reasonably
cooperate and, at the reasonable request of the other, to provide the other with such information as each may have in its possession that is necessary to enable the determination of whether any payments hereunder are subject to FATCA Withholding
Tax.
Each Holder of the Notes will, by accepting the Notes or a beneficial interest therein, agree and shall be deemed to have agreed that the Holder or beneficial owner intends that the Notes constitute Indebtedness, and
will treat the Notes as Indebtedness, for all U.S. federal, state and local tax purposes.
[Signature page to follow.]
33
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed all as of the day and year first above written.
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KKR Group Finance Co. IX LLC
|
|||
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By:
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/s/ Robert H. Lewin
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||
|
Name:
|
Robert H. Lewin | ||
|
Title:
|
Chief Financial Officer | ||
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KKR & Co. Inc.
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|||
|
By:
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/s/ Robert H. Lewin
|
||
|
Name:
|
Robert H. Lewin | ||
|
Title:
|
Chief Financial Officer | ||
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KKR Group Partnership L.P.
|
|||
| KKR Group Holdings Corp., as its general partner | |||
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By:
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/s/ Robert H. Lewin
|
||
|
Name:
|
Robert H. Lewin | ||
|
Title:
|
Chief Financial Officer | ||
[Signature Page to First Supplemental Indenture]
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The Bank of New York Mellon Trust
Company, N.A., as Trustee
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|||
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By:
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/s/ Manjari Purkayastha
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||
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Name:
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Manjari Purkayastha | ||
|
Title:
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Vice President | ||
[Signature Page to First Supplemental Indenture]
Exhibit 5.1
Simpson Thacher & Bartlett LLP
425 LEXINGTON AVENUE
NEW YORK, NY
10017-3954
TELEPHONE:
+1-212-455-2000
FACSIMILE:
+1-212-455-2502
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Direct Dial Number
|
E-mail Address
|
March 31, 2021
KKR & Co. Inc.
30 Hudson Yards
New York, New York 10001
Ladies and Gentlemen:
We have acted as counsel to KKR Group Finance Co. IX LLC, a Delaware limited liability company (the “Company”), and KKR & Co.
Inc., a Delaware corporation (the “Parent”), and KKR Group Partnership L.P., an exempted limited partnership formed under the law of the Cayman Islands (“KKR Group Partnership” and, together with the Parent, the “Guarantors”) in connection with the
Registration Statement on Form S-3 (the “Registration Statement”) filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the
Company from time to time for an indeterminate aggregate initial offering price of, among other things, debt securities, which may be either senior or subordinated (collectively, the “Securities”) and the issuance by the Guarantors of Guarantees (as
defined below) with respect to the Securities.
We have examined the Registration Statement; the Underwriting Agreement dated March 24, 2021 (the “Underwriting Agreement”),
among the Company, the Guarantors and the underwriters named therein, pursuant to which such underwriters have agreed to purchase
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BEIJING
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HONG KONG
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HOUSTON
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LONDON
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LOS ANGELES
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PALO ALTO
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SÃO PAULO
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TOKYO
|
WASHINGTON, D.C.
|
$500,000,000 aggregate principal amount of 4.625% Subordinated Notes due 2061 (the “Notes”) issued by the Company and unconditionally guaranteed by the Guarantors; the Indenture, dated as of March 31, 2021 (the “Base Indenture”), among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of March 31, 2021 (the “First Supplemental Indenture”), among the Company, the Guarantors and the Trustee (together with the Base Indenture, the “Indenture”); a
duplicate of the global note representing the Notes; and the guarantees whose terms are set forth in the Indenture (the “Guarantees”). In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or
conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors and have made such other
investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter
documents. We also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
In rendering the opinions set forth below, we have assumed further that (1) KKR Group Partnership is validly existing and in good standing under the law of the Cayman Islands and has duly authorized, executed, issued and delivered the Underwriting Agreement, the Indenture and its Guarantee, as applicable,
in accordance with its organizational documents and the law of the
Cayman Islands, (2) the execution, issuance, delivery and performance by KKR Group Partnership of the Underwriting Agreement, the Indenture and its
Guarantee, as applicable, do not constitute a breach or violation of its organizational documents or violate the law of the Cayman Islands or any other applicable jurisdiction (except that no such assumption is made with respect to the federal law
of the United States, the law of the State of New York, the Delaware General Corporation Law (the “DGCL”) or the Delaware Limited Liability Company Act (the “DLLCA”)) and (3) the execution, issuance, delivery and performance by the Company and each
Guarantor of the Underwriting Agreement, the Indenture, the Notes and its Guarantee, as applicable, do not constitute a breach or default under any agreement or instrument which is binding upon the Company or any such Guarantor.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion
that:
1. Assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the provisions of the Underwriting Agreement, the Notes will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms.
2. Assuming due authentication of the Notes by the Trustee and upon payment for and delivery of the Notes in accordance with the Underwriting Agreement, the Guarantees will constitute valid and legally binding obligations of the
Guarantors enforceable against the Guarantors in accordance with their terms.
Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights. In addition, we express no opinion
as to the validity, legally binding effect or enforceability of (i) the waiver of rights and defenses contained in Section 1406 of the
Base Indenture or (ii) Section 110 and Section 10.03, of the Base Indenture and the First Supplemental Indenture, respectively, relating to the
separability of the provisions of such agreements.
In connection with Section 112 and Section 10.06 of the Base Indenture and the First Supplemental Indenture, respectively,
whereby the parties submit to the jurisdiction of the courts of the United States of America located in the City of New York and County of New York and the Borough of Manhattan in the City of New York, respectively, we note the limitations of 28
U.S.C. Sections 1331 and 1332 on subject matter jurisdiction of the U.S. federal courts. In connection with the provisions of Section 112 and Section 10.06 of the Base Indenture and the First Supplemental Indenture, respectively, which relate to
forum selection of the courts of the State of New York located in the City of New York and County of New York and the Borough of Manhattan in the City of New York, respectively (including, without limitation, any waiver of any objection to venue or
any objection that a court is an inconvenient forum), we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial and under 28 U.S.C. Section 1404(a) a U.S. District Court has discretion to
transfer an action from one U.S. federal court to another. We also note that the recognition and enforcement in New York State courts or U.S. federal courts sitting in the State of New York of a foreign judgment obtained against the Company or the
Guarantors is subject to the Uniform Foreign Money—Judgments Recognition Act (53 C.P.L.R. §5301 et seq.).
We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the
United States, the DGCL and the DLLCA. We expressly disclaim coverage of any other Delaware law, except judicial decisions interpreting the DGCL and the DLLCA.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name
under the caption “Legal Matters” in the prospectus included in the Registration Statement.
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Very truly yours,
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/s/ Simpson Thacher & Bartlett LLP
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SIMPSON THACHER & BARTLETT LLP
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Exhibit 5.2
| KKR Group Partnership L.P. | |
| PO Box 309, Ugland House | |
| Grand Cayman | |
| KY1-1104 | |
| Cayman Islands |
We have acted as counsel as to Cayman Islands law to KKR Group Partnership L.P. (the "Partnership"),
a Cayman Islands exempted limited partnership, and to KKR Group Holdings Corp. (the "General Partner"), a foreign company incorporated or
established in the State of Delaware, U.S.A., in connection with the Company's registration statement of KKR & Co. Inc. ("KKR & Co") on Form S-3, including all
amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the "Commission") under the United States Securities Act of 1933, as amended (the "Act") (including its exhibits, the "Registration Statement") for the purposes of, registering with the Commission under the Act, the offering of certain securities of KKR
& Co, which may be guaranteed by the Partnership (each, a "Guarantee").
| 1 |
Documents Reviewed
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We have reviewed originals, copies, drafts or conformed copies of the following documents:
| 1.1 |
| 1.2 |
| 1.3 |
| 1.4 |
The third amended and restated limited partnership agreement of the Partnership dated 1 January 2020 between, among others, the General Partner and each of the limited partners named therein,
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as amended by the amendment no.1 to the third amended and restated limited partnership agreement of the Partnership dated 14 August 2020 (the "Partnership
Agreement").
| 1.5 |
| 1.6 |
| 1.7 |
| 1.8 |
The Registration Statement.
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| 2 |
Assumptions
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The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter.
In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the General Partner's Certificate and the Certificates of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.2 |
Each Guarantee has been or, as the case may be, or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws.
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| 2.3 |
| 2.4 |
| 2.6 |
All signatures, initials and seals are genuine.
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| 2.8 |
the Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective obligations under each Guarantee.
| 2.9 |
| 2.11 |
| 2.12 |
| 2.14 |
| 2.15 |
The Court Register constitutes a complete record of the proceedings before the Grand Court as at the time of the Litigation Search (as those terms are defined below).
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| 3 |
Opinions
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Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 |
| 3.2 |
| 4 |
Qualifications
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The opinions expressed above are subject to the following qualifications:
| 4.1 |
| (a) |
| (b) |
enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may not be available, inter alia, where damages are considered to be an adequate remedy;
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| (c) |
some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set off, counterclaim, estoppel and similar defences;
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| (d) |
where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction;
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| (f) |
arrangements that constitute penalties, generally, will not be enforceable; Under the Law, however, those provisions of the Partnership Agreement which provide that where the General Partner or Limited Partner fails to perform any of
its obligations under, or otherwise breaches the provisions of, the Partnership Agreement the General Partner or Partner may be subject to or suffer remedies for, or consequences of, the failure or breach specified in the Partnership
Agreement or otherwise applicable under any law then those remedies or consequences shall not be unenforceable solely on the basis that they are penal in nature;
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| (g) |
enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or mistake or limited by the doctrine of frustration of contracts;
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| (h) |
provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process;
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| (i) |
| (j) |
any provision in a document which is governed by Cayman Islands law purporting to impose obligations on a person who is not a party to such document (a "third party")
is unenforceable against that third party. Any provision in a document which is governed by Cayman Islands law purporting to grant rights to a third party is unenforceable by that third party, except to the extent that such document
expressly provides that the third party may, in its own right, enforce such rights (subject to and in accordance with the Contracts (Rights of Third Parties) Act (As Revised) of the Cayman Islands);
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| (k) |
any provision of a document which is governed by Cayman Islands law which expresses any matter to be determined by future agreement may be void or unenforceable; and
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| (l) |
| 4.2 |
| 4.3 |
| (a) |
on behalf of any one or more of the general partners; or
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| (b) |
in the name of the exempted limited partnership,
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is an asset of the exempted limited partnership held upon trust in accordance with the terms of the Law.
| 4.10 |
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the headings
"Legal Matters", "Protection of Minority Shareholders", "Shareholders' Suits" in the prospectus included in the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder
The opinions in this opinion letter are strictly limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review and we therefore have not
reviewed any of the ancillary documents relating to the Partnership Agreement and express no opinion or observation upon the terms of any such document.
This opinion letter is addressed to and for the benefit solely of the addressees and may not be relied upon by any other person for any purpose, nor may it be transmitted or disclosed (in whole or in part) to any
other person without our prior written consent, except as required by law.
Yours faithfully
/s/ Maples and Calder
Maples and Calder (Cayman) LLP
Schedule
Wilmington, DE 19801, United States
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31 March 2021
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To:
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Maples and Calder
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PO Box 309, Ugland House
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Grand Cayman, KY1-1104
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Cayman Islands
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I, the undersigned, being duly authorised on behalf of KKR Group Holdings Corp., the general partner of the Partnership,
am aware that you are being asked to provide a legal opinion (the "Opinion") in relation to certain aspects of
Cayman Islands law. Capitalised terms used in this certificate have the meaning given to them in the Opinion. I hereby
certify that as at the date of this certificate:
| 2 |
| 3 |
| 4 |
No event has occurred to effect the termination or dissolution or de-registration of the General Partner.
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| 5 |
| 7 |
| 9 |
To the best of my knowledge and belief, neither the General Partner nor the Partnership are subject to an action, suit or proceeding pending before any court (judicial or administrative) or arbitral tribunal in any jurisdiction and no
such proceedings have been threatened against the Partnership or the General Partner. No steps have been taken to commence the winding up, dissolution or de-registration of the General Partner nor have the directors, the members, the
partners or the shareholders taken any steps to have the General Partner struck off or placed in liquidation. No steps have been taken to wind up, dissolve or de-register the Partnership. No receiver has been appointed over any of the
General Partner's or the Partnership's property or assets.
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I confirm that you may continue to rely on this certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you in writing
personally to the contrary.
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Signed:
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/s/ Robert H. Lewin
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Name:
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Robert H. Lewin |
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Authorised signatory of KKR Group Holdings Corp.
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