Envista Holdings Corp S-3ASR, filed Nov 9, 2026
Envista Holdings Corp (NVST)
Envista Holdings Corporation filed an automatic shelf registration for an indeterminate amount of multiple securities, enabling offerings from time to time through agents, underwriters, dealers or direct sales. AI summary
As filed with the Securities and Exchange Commission on November 9, 2026
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENVISTA
HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 83-2206728 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
200
S. Kraemer Blvd., Building E
Brea, California 92821
(714) 817-7000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Scott
Graziano
Vice President, Assistant General Counsel, Corporate Securities and Governance
Envista Holdings Corporation
200 S. Kraemer Blvd., Building E
Brea, California 92821
(714) 817-7000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christian
O. Nagler, P.C.
Sarah Lipinski
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ |
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
ENVISTA HOLDINGS CORPORATION
Common Stock
Preferred Stock
Debt Securities
Warrants
Stock Purchase Contracts
Stock Purchase Units
You should read this prospectus and the applicable prospectus supplement carefully before you invest in any offered securities.
Envista Holdings Corporation, a Delaware corporation (“Envista” or the “Company”), or its selling securityholders may offer and sell the securities identified above, from time to time, in one or more offerings. This prospectus provides you with a general description of the securities. The applicable prospectus supplement or free writing prospectus will contain the specific terms of the securities being offered thereby.
The applicable prospectus supplement will also contain information, where applicable, about certain U.S. federal income tax consequences relating to, and any listing on a securities exchange of, the offered securities covered by such prospectus supplement.
Envista or its selling securityholders may offer and sell these securities to or through underwriters, dealers or agents or directly to one or more purchasers, or through a combination of these methods, on a continuous or delayed basis. The names of any underwriters, dealers or agents and the terms of the arrangements with any such entities will be stated in the applicable prospectus supplement or free writing prospectus. Our net proceeds from the sale of these securities also will be set forth in the applicable prospectus supplement or free writing prospectus.
Envista’s common stock, par value $0.01 per share (our “common stock”) is listed on the New York Stock Exchange (the “NYSE”) under the trading symbol “NVST.” Each prospectus supplement or free writing prospectus will indicate if the securities offered thereby will be listed on any securities exchange.
Investing in these securities involves risks. See “Risk Factors” on page 3 of this prospectus, as well as any risk factors contained in any prospectus supplement and the documents incorporated by reference herein and therein, before you make your investment decision.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 9, 2026.
TABLE OF CONTENTS
| i |
Except as otherwise indicated or unless the context otherwise requires, as used in this prospectus, the terms “we,” “us,” “our,” “Company” and “Envista” refer to Envista Holdings Corporation and its consolidated subsidiaries.
This prospectus is part of an “automatic shelf” registration statement on Form S-3 that we filed with the SEC under the Securities Act of 1933, as amended (the “Securities Act”). Under this shelf registration statement, we may offer and sell, from time to time, an indeterminate amount of any combination of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer and sell. Each time that securities are offered, a prospectus supplement or free writing prospectus containing specific information about the terms of that offering will be provided, including the specific amounts, prices and terms of the securities offered. The applicable prospectus supplement or free writing prospectus and any other offering material may also add to, update or change information contained in this prospectus or in documents incorporated by reference into this prospectus. Any statement made in this prospectus will be modified or superseded by any inconsistent statement made in a prospectus supplement or free writing prospectus filed after this prospectus. If there is any inconsistency between the information in this prospectus and the information in a prospectus supplement or free writing prospectus, you should rely on the information in the applicable prospectus supplement or free writing prospectus.
You should rely only on the information contained in this prospectus, in an accompanying prospectus supplement or free writing prospectus, or incorporated by reference herein or therein. We have not authorized anyone to provide you with additional or different information, and, if you are provided with any such information, you should not rely on it. We do not take any responsibility for or provide any assurance as to the accuracy or completeness of any additional or different information that others may give you. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or a solicitation of an offer to buy any securities other than the registered securities to which they relate, and this prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction where, or to any person to whom, it is unlawful to make such an offer or solicitation. The information contained in this prospectus and any accompanying prospectus supplement is accurate only as of the respective dates of this prospectus and any such prospectus supplement or supplements, regardless of the time of delivery of this prospectus and any such prospectus supplement or supplements or the time of any sale of securities sold pursuant to this prospectus and such prospectus supplement or supplements.
We are not making an offer to sell, or soliciting an offer to buy, any of these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information contained in this prospectus or the applicable prospectus supplement or free writing prospectus is accurate as of any date other than the date on the front cover of this prospectus or the applicable prospectus supplement or free writing prospectus, as the case may be, or that the information incorporated by reference herein and therein is accurate as of any date other than the date of the relevant report or other document in which such information is contained.
| 1 |
Envista Holdings Corporation
Envista is a global family of more than 30 trusted dental brands, including Nobel Biocare, Ormco, DEXIS and Kerr, united by a shared purpose: to partner with professionals to improve lives. We help our customers deliver the best possible patient care through industry-leading products, solutions and technology. Our comprehensive portfolio, including dental implants and treatment options, orthodontics and digital imaging technologies, covers a wide range of dentists’ clinical needs for diagnosing, treating and preventing dental conditions as well as improving the human smile. We further support the dental community with leading solutions in restoratives, endodontics, rotary, infection prevention and loupes. We were formed in 2018 as a wholly-owned subsidiary of Danaher Corporation and, in 2019, we completed our initial public offering and separated from Danaher Corporation.
We serve dental professionals in over 130 countries through one of the largest commercial organizations in the dental products industry and through our distribution partners. In 2025, we generated total sales of $2.7 billion, of which approximately 85% were derived from sales of consumable products, services and spare parts. Our business is operated through two segments: Specialty Products & Technologies, which is comprised of our Dental Implant Solutions and Orthodontic Solutions businesses, and Equipment & Consumables, which is comprised of our Diagnostic and Consumables Solutions businesses.
Our principal executive offices are located at 200 S. Kraemer Blvd., Building E, Brea, California 92821. The telephone number of our principal executive offices is (714) 817-7000. Our website is www.envistaco.com. We have included our website address in this prospectus solely as an inactive textual reference and the information contained in, or that can be accessed through, our website is not a part of, or incorporated by reference in, this prospectus.
Additional information about Envista is included in our reports and other documents incorporated by reference in this prospectus. See “Where You Can Find More Information; Incorporation by Reference.”
Trademarks and Trade Names
Envista’s logo and its other registered or common law trademarks, service marks or trade names appearing in this prospectus are the property of Envista. Solely for convenience, trademarks, service marks and trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear without a trademark symbol, but such references are not intended to indicate in any way that Envista will not assert, to the fullest extent under applicable law, Envista’s rights or the rights of the applicable licensor to these trademarks, service marks and trade names.
| 2 |
Our business is subject to uncertainties and risks, and investing in our securities involves risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by our subsequent Quarterly Reports on Form 10-Q and other SEC filings, before investing in our securities. For more information, see the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.” Any prospectus supplement may also include additional risks related to the securities being offered thereby. It is possible that our business, financial condition, liquidity, cash flows, results of operations, reputation and prospects could be materially adversely affected by any of these risks or additional risks and uncertainties not presently known to us or that we currently believe to be immaterial and these risks could result in a partial or complete loss of your investment.
| 3 |
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain, and any prospectus supplement and free writing prospectus that we may provide to you in connection with an offering of the securities described in this prospectus may contain, “forward-looking statements” as that term is defined in Section 27A of the Securities Act and Section 21E of the Exchange Act and are subject to the safe harbor created thereby under the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact contained in this prospectus, any accompanying prospectus supplement or free writing prospectus, and the documents incorporated by reference herein and therein, including statements regarding our future results of operations and financial position, strategy and plans, and our expectations for future operations, are forward-looking statements. You can identify these forward-looking statements by the use of the words “feels”, “believes”, “anticipates”, “plans”, “expects”, “may”, “will”, “would”, “intends”, “suggests”, “appears”, “estimates”, “projects”, “should” and similar expressions, whether in the negative or affirmative. These forward-looking statements are subject to various risks and uncertainties, many of which are outside the control of the Company, including, and without limitation:
| ● | conditions in the U.S. and global economy; |
| ● | the impact of inflation and increasing interest rates; |
| ● | slower economic growth or recession; |
| ● | international economic, political, legal, compliance and business factors; |
| ● | the markets served by us and the financial markets; |
| ● | the impact of our debt obligations on our operations and liquidity; |
| ● | developments and uncertainties in trade policies and regulations, including tariffs or other impositions on imported goods; |
| ● | contractions or growth rates and cyclicality of markets we serve; |
| ● | risks relating to product manufacturing; |
| ● | commodity costs and surcharges; |
| ● | our ability to adjust purchases and manufacturing capacity to reflect market conditions; |
| ● | reliance on sole or limited sources of supply; |
| ● | disruptions relating to war (including supply chain disruptions), terrorism, climate change, widespread protests and civil unrest, man-made and natural disasters, public health issues and other events; |
| ● | security breaches or other disruptions of our information technology systems or violations of data privacy laws; |
| ● | security breaches or other disruptions affecting our external information technology contractors, vendors or other service providers; |
| ● | our growing use of artificial intelligence systems to automate processes and analyze data; |
| ● | fluctuations in inventory of our distributors and customers; |
| ● | loss of a key distributor; |
| ● | our relationships with and the performance of our channel partners; |
| ● | competition; |
| ● | our ability to develop and successfully market new products and services; |
| ● | our ability to attract, develop and retain our key personnel; |
| 4 |
| ● | the potential for improper conduct by our employees, agents or business partners; |
| ● | our compliance with applicable laws and regulations (including regulations relating to medical devices and the health care industry); |
| ● | the results of our clinical trials and perceptions thereof; |
| ● | penalties associated with any off-label marketing of our products; |
| ● | modifications to our products that require new marketing clearances or authorizations; |
| ● | our ability to effectively address cost reductions and other changes in the health care industry; |
| ● | our ability to successfully identify and consummate appropriate acquisitions and strategic investments; |
| ● | our ability to integrate the businesses we acquire and achieve the anticipated benefits of such acquisitions; |
| ● | contingent liabilities relating to acquisitions, investments and divestitures; |
| ● | our ability to adequately protect our intellectual property; |
| ● | the impact of our restructuring activities on our ability to grow; |
| ● | risks relating to impairment charges for our goodwill and intangible assets; |
| ● | changes in accounting standards and subjective assumptions, estimates and judgments by management; |
| ● | currency exchange rates; |
| ● | changes in tax laws applicable to multinational companies; |
| ● | litigation and other contingent liabilities including intellectual property and environmental, health and safety matters; |
| ● | risks relating to product, service or software defects; |
| ● | the impact of regulation on demand for our products and services; |
| ● | labor matters; and |
| ● | other risks and uncertainties set forth under “Item 1A. Risk Factors” in our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q and in our other reports filed with the SEC. |
You should also carefully read the factors described under “Risk Factors” and in other cautionary statements in this prospectus, any related prospectus supplement and free writing prospectus, and in our most recent Annual Report on Form 10-K for the year ended December 31, 2025 and in our Quarterly Report on Form 10-Q for the quarter ended April 3, 2026 filed with the SEC and our other filings with the SEC that are incorporated by reference into this prospectus and any prospectus supplement that we may provide to you in connection with an offering of the securities described in this prospectus for a description of certain risks that could, among other things, cause our actual results to differ from those expressed in forward-looking statements.
Any forward-looking statements in this prospectus are based upon information available to the Company as of the date of this prospectus and, while believed to be true when made, may ultimately prove to be incorrect. Similarly, forward-looking statements that are incorporated by reference herein are based on information available to the Company as of the date such statements were made and while also believed to be true when made, may prove to be incorrect in the future. Subject to any obligations under applicable law, the Company does not undertake any obligation to update any forward-looking statement whether as a result of new information, future developments or otherwise, or to conform any forward-looking statement to actual results, future events, or to changes in expectations.
| 5 |
We intend to use the net proceeds from the sale of the securities that we may offer from time to time under this prospectus as specified in any applicable prospectus supplement relating to a particular offering.
| 6 |
We will set forth in the applicable prospectus supplement a description of the common stock, preferred stock, debt securities, warrants, stock purchase contracts or stock purchase units that may be offered under this prospectus.
| 7 |
We may sell the offered securities: (a) through agents; (b) through underwriters or dealers; (c) directly to one or more purchasers; or (d) through a combination of any of these methods of sale. We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in a prospectus supplement.
| 8 |
The legality of the securities will be passed upon for us by Kirkland & Ellis LLP, New York, New York, and for any underwriters, dealers or agents by counsel as may be specified in the applicable prospectus supplement.
| 9 |
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2025, and the effectiveness of our internal control over financial reporting as of December 31, 2025, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s reports given on their authority as experts in accounting and auditing.
| 10 |
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Envista files annual, quarterly and periodic reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is www.sec.gov. Unless specifically listed below, the information contained on the SEC’s website is not intended to be incorporated by reference in this prospectus and you should not consider that information a part of this prospectus.
The SEC allows us to “incorporate by reference” into this prospectus information which we file with it. This means that we can disclose important information to you by referring you to the documents containing that information filed separately with the SEC and that such information will be regarded as an important part of this prospectus. We encourage you to read the SEC filings incorporated by reference into this prospectus before investing in any of our securities. Envista’s filings with the SEC and any amendments to those filings are available free of charge on the Investors subpage of our website, located at https://investors.envistaco.com as soon as reasonably practicable after they are filed with, or furnished to, the SEC. We have included our website address in this prospectus solely as an inactive textual reference and the information contained in, or that can be accessed through, our website is not a part of, or incorporated by reference in, this prospectus.
We incorporate by reference into this prospectus the documents listed below (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished or deemed to have been furnished and not filed or that are not deemed to be incorporated by reference into SEC filings, in each case, in accordance with SEC rules, unless otherwise indicated therein):
| · | Envista’s Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on February 12, 2026; | |
| · | the portions of Envista’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 7, 2026, that are incorporated by reference into Part III of Envista’s Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on February 12, 2026; | |
| · | Envista’s Quarterly Reports on Form 10-Q for the quarters ended April 3, 2026, July 3, 2026 and October 2, 2026, filed with the SEC on May 6, 2026, August 5, 2026 and November 4, 2026, respectively; | |
| · | Envista’s Current Reports on Form 8-K filed with the SEC on May 21, 2026, June 3, 2026 and August 19, 2026 (in each case, other than information furnished pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K); and | |
| · | the description of Envista’s common stock contained in its Registration Statement on Form 8-A filed with the SEC on September 17, 2019, as updated by the description of Envista’s securities filed as Exhibit 4.1 to Envista’s Annual Report on Form 10-K for the year ended December 31, 2024, and any other amendment or report filed for the purpose of updating such description. |
We also incorporate by reference the information contained in any future filings made by Envista with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and, in the case of any particular offering of securities, until such offering of securities is terminated (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished or deemed to have been furnished and not filed or that are not deemed to be incorporated by reference into SEC filings, in each case, in accordance with SEC rules, including Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01), unless otherwise indicated therein). Our future filings with the SEC will automatically update and supersede any inconsistent information in this prospectus and in our other SEC filings, and such outdated or inconsistent information will no longer be regarded as part of this prospectus.
You may also obtain a copy of these filings at no cost by writing Envista at the following address:
Envista
Holdings Corporation
200 S. Kraemer Blvd., Building E
Brea, California 92821
Attention: Investor Relations
Telephone: (714) 817-7000
The registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus. The registration statement is available at the SEC’s website above.
We are not making an offer to sell, or the solicitation of an offer to buy, any of these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information contained in this prospectus or the applicable prospectus supplement is accurate as of any date other than the date on the front cover of this prospectus or the applicable prospectus supplement, as the case may be, or that the information incorporated by reference herein and therein is accurate as of any date other than the date of the relevant report or other document in which such information is contained.
| 11 |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth estimated expenses relating to the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, to be paid by the registrant.
| Amount To Be Paid | ||||
| SEC registration fee | $ | * | ||
| Trustee and transfer agent fees | ** | |||
| Legal fees and expenses | ** | |||
| Accounting fees and expenses | ** | |||
| Rating agency and listing fees | ** | |||
| Printing and engraving fees and expenses | ** | |||
| Miscellaneous | ** | |||
| Total | $ | ** | ||
| * | To be deferred pursuant to Rule 456(b) under the Securities Act and calculated in connection with an offering of securities under this registration statement pursuant to Rule 457(r) under the Securities Act. |
| ** | These fees cannot be estimated at this time, as they are calculated based on the securities offered and the number of issuances. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement. |
| II-1 |
Item 15. Indemnification of Directors and Officers.
Delaware Corporations
Section 145 of the Delaware General Corporation Law (the “DGCL”) permits a corporation to indemnify any person who is or has been a director, officer, employee or agent of the corporation or who is or has been serving as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the corporation, against expenses (including, but not limited to, attorneys’ fees and disbursements and amounts paid in settlement or in satisfaction of judgments or as fines or penalties) actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, in which he/she may be involved by reason of the fact that he/she served or is serving in these capacities, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interest of the corporation and, with respect to any criminal action or proceeding, had no cause to believe his/her conduct was unlawful. In the case of an action, suit or proceeding made or brought by or in the right of the corporation to procure a judgment in its favor, the corporation shall not indemnify such person in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, except for such expenses as the court may allow. Any such person who has been wholly successful on the merits or otherwise with respect to any such action, suit or proceeding or with respect to any such claim, issue or matter therein, shall be indemnified against all expenses actually and reasonably incurred in connection therewith.
Our Amended and Restated Certificate of Incorporation (our “Certificate”) provides that we will indemnify, to the full extent authorized or permitted by law, any person made, or threatened to be made, a party to any action or proceeding by reason of the fact that such person is or was a director or officer of Envista or, at our request, is or was serving any other enterprise in any capacity.
In addition, Section 102(b)(7) of the DGCL provides that a corporation may eliminate or limit the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, provided that such provision shall not eliminate or limit the liability of a director or officer, as applicable, (i) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for a director under Section 174 of the DGCL, (iv) for any transaction from which the director or officer derived an improper personal benefit, or (v) in the case of an officer, in any action by or in the right of the corporation. No such provision shall eliminate or limit the liability of a director or officer for any act or omission occurring prior to the date when such provision becomes effective.
Our Amended and Restated Bylaws (our “Bylaws”) limit the liability of our directors and officers to the fullest extent permitted by the DGCL, as such may be amended. No amendment to, modification of or repeal of this provision of our Certificate will apply to, or have any adverse effect on, any right or protection of, or any limitation of the liability of, a director or officer existing at the time of such amendment, modification or repeal with respect to acts or omissions occurring prior thereto.
Our Bylaws provide that we will indemnify our current and former directors and officers who meet the applicable standard of conduct under the DGCL against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement, and that we will advance expenses incurred by a director or officer in defending a proceeding upon receipt of an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified.
In addition, pursuant to certain indemnification agreements between Envista and its directors and executive officers, Envista has agreed to indemnify such directors and executive officers to the fullest extent permitted by Delaware law. Among other things, the indemnification agreements provide indemnification procedures, advancement of expenses during proceedings subject to indemnification and mechanisms for reviewing director and officer conduct in connection with a claim for indemnification.
Item 16. Exhibits.
| Exhibit No. | Document | |
| 1.1* | Form of Underwriting Agreement. | |
| 4.1 | Form of Indenture for debt securities of Envista Holdings Corporation. | |
| 4.2* | Form of debt security. | |
| 4.3* | Certificate of designation, preferences and rights with respect to Envista Holdings Corporation’s preferred stock. | |
| 4.4* | Specimen preferred stock certificate of Envista Holdings Corporation. | |
| 4.5* | Form of Warrant Agreement (Stock) (including form of Warrant Certificate). | |
| 4.6* | Form of Warrant Agreement (Debt) (including form of Warrant Certificate). | |
| 4.7* | Form of Stock Purchase Contract. | |
| 4.8* | Form of Unit Agreement. | |
| 5.1 | Opinion of Kirkland & Ellis LLP. | |
| 23.1 | Consent of Kirkland & Ellis LLP (included in Exhibit 5.1). | |
| 23.2 | Consent of Ernst & Young LLP. | |
| 24.1 | Powers of attorney (included as part of the signature pages hereto). | |
| 25.1 | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.1 above. | |
| 107 | Filing Fee Table. |
| * | To be filed, if necessary, after the effectiveness of this registration statement as an exhibit to a post-effective amendment hereto or to a report filed with the SEC under the Securities Exchange Act of 1934, as amended. |
| II-2 |
Item 17. Undertakings.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” table in the effective registration statement. |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| II-3 |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
| II-4 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Brea, State of California, on this ninth day of November, 2026.
| ENVISTA HOLDINGS CORPORATION | ||
| By: | /s/ Eric Hammes | |
| Name: | Eric Hammes | |
| Title: | Senior Vice President and Chief Financial Officer | |
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Paul Keel and Eric Hammes, and each of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the ninth day of November, 2026.
| Signature | Title | |
| /s/ Paul Keel | Chair of the Board of Directors, President and | |
| Paul Keel | Chief Executive Officer (Principal Executive Officer) | |
| /s/ Eric Hammes | Senior Vice President and Chief Financial Officer | |
| Eric Hammes | (Principal Financial Officer) | |
| /s/ Coree Thomas | Vice President and Chief Accounting Officer | |
| Coree Thomas | (Principal Accounting Officer) | |
| /s/ Wendy Carruthers | Director | |
| Wendy Carruthers | ||
| /s/ Kieran T. Gallahue | Director | |
| Kieran T. Gallahue | ||
| /s/ Scott Huennekens | Director | |
| Scott Huennekens | ||
| /s/ Vivek Jain | Director | |
| Vivek Jain | ||
| /s/ James Andrew Pierce | Director | |
| James Andrew Pierce | ||
| /s/ Daniel A. Raskas | Director | |
| Daniel A. Raskas | ||
| /s/ Christine Tsingos | Director | |
| Christine Tsingos |
| II-5 |
Exhibit 4.1
ENVISTA HOLDINGS CORPORATION
as Issuer
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
FORM OF INDENTURE
Dated as of [●]
RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND INDENTURE CROSS-REFERENCE TABLE1
| TIA Section | Indenture
Section | |
| 310(a)(1) | 7.09 | |
| (a)(2) | 7.09 | |
| (a)(3) | N.A. | |
| (a)(4) | N.A. | |
| (a)(5) | 7.09 | |
| (b) | 7.09, 7.10(d) | |
| 311(a) | 7.14 | |
| (b) | 7.14 | |
| 312(a) | 8.01 | |
| (b) | 8.02 | |
| (c) | 8.02 | |
| 313(a) | 8.03 | |
| (b) | 8.03 | |
| (c) | 8.03 | |
| (d) | 8.03 | |
| 314(a)(1) | 8.04 | |
| (a)(2) | 8.04 | |
| (a)(3) | 8.04 | |
| (a)(4) | 5.06, 8.04 | |
| (b) | N.A. | |
| (c)(1) | 1.02 | |
| (c)(2) | 1.02 | |
| (c)(3) | N.A. | |
| (d) | N.A. | |
| (e) | 1.02 | |
| (f) | N.A. | |
| 315(a) | 7.01(a) | |
| (b) | 7.02 | |
| (c) | 7.01(b) | |
| (d) | 7.01(a), (c) | |
| (e) | 6.08 | |
| 316(a)(1) | 6.02, 6.07 | |
| (a)(2) | N.A. | |
| (a)(last sentence) | 1.01 | |
| (b) | 10.02 | |
| (c) | 9.02 | |
| 317(a) | 6.03 | |
| (b) | 5.05 |
| 1 | This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. |
TABLE OF CONTENTS
| Page | ||
| I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 | |
| 1.01 Definitions | 1 | |
| 1.02 Compliance Certificates and Opinions | 5 | |
| 1.03 Form of Documents Delivered to Trustee | 6 | |
| 1.04 Notices, Etc., to Trustee, the Company | 6 | |
| 1.05 Notice to Holders; Waiver | 6 | |
| 1.06 Conflict With Trust Indenture Act | 7 | |
| 1.07 Effect of Headings and Table of Contents | 7 | |
| 1.08 Successors and Assigns | 7 | |
| 1.09 Separability Clause | 7 | |
| 1.10 Benefits of Indenture | 7 | |
| 1.11 Governing Law; Jury Trial Waiver | 7 | |
| 1.12 Legal Holidays | 8 | |
| 1.13 Moneys of Different Currencies to be Segregated | 8 | |
| 1.14 Payment to be in Proper Currency | 8 | |
| 1.15 Counterparts | 8 | |
| 1.16 No Adverse Interpretation of Other Agreements | 8 | |
| 1.17 Rules of Construction | 9 | |
| II SECURITY FORMS | 9 | |
| 2.01 Forms Generally | 9 | |
| 2.02 Form of Trustee’s Certificate of Authentication | 10 | |
| 2.03 Forms of Securities | 10 | |
| 2.04 Book-Entry Provisions for Global Securities | 10 | |
| III THE SECURITIES | 11 | |
| 3.01 Amount Unlimited; Issuable in Series | 11 | |
| 3.02 Denominations | 13 | |
| 3.03 Execution, Authentication, Delivery and Dating | 13 | |
| 3.04 Temporary Securities | 14 | |
| 3.05 Registration; Registration of Transfer and Exchange | 14 | |
| 3.06 Mutilated, Destroyed, Lost and Stolen Securities | 15 | |
| 3.07 Payment of Interest; Interest Rights Preserved | 16 | |
| 3.08 Persons Deemed Owners | 16 | |
| 3.09 Cancellation | 16 | |
| 3.10 Computation of Interest; Calculations | 17 | |
| 3.11 CUSIP Numbers | 17 | |
| IV REDEMPTION OF SECURITIES AND SINKING FUNDS | 17 | |
| 4.01 Applicability of Right of Redemption | 17 | |
| 4.02 Election to Redeem; Notice of Redemption; Partial Redemption | 17 | |
| 4.03 Payment of Securities Called for Redemption | 18 | |
| 4.04 Deposit of Funds for Redemption of Securities | 18 | |
| 4.05 Applicability of Sinking Fund | 18 | |
| 4.06 Satisfaction of Mandatory Sinking Fund Payments with Securities | 19 | |
| 4.07 Redemption of Securities for Sinking Funds | 19 | |
| V PARTICULAR COVENANTS | 20 | |
| 5.01 Payments of Principal, Premium, if any, and Interest, if any | 20 | |
| 5.02 Office or Agency for Certain Purposes | 20 | |
| 5.03 Waiver of Certain Covenants | 20 | |
| 5.04 Appointments to Fill Vacancies in Trustee’s Office | 20 | |
| 5.05 Provisions as to Paying Agent | 20 | |
| 5.06 Statement by Officers as to Default | 21 |
i
| Page | ||
| VI REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT | 21 | |
| 6.01 Events of Default | 21 | |
| 6.02 Acceleration of Maturity; Rescission and Annulment | 23 | |
| 6.03 Collection of Indebtedness by Trustee; Trustee May Prove Debt | 24 | |
| 6.04 Application of Proceeds | 25 | |
| 6.05 Limitations on Suits by Holders | 25 | |
| 6.06 Powers and Remedies Cumulative; Delay or Omission Not Waiver | 25 | |
| 6.07 Control by Holders; Waiver of Default | 26 | |
| 6.08 Undertaking for Costs | 26 | |
| VII CONCERNING THE TRUSTEE | 26 | |
| 7.01 Certain Duties and Responsibilities | 26 | |
| 7.02 Notice of Defaults | 27 | |
| 7.03 Certain Rights of Trustee | 27 | |
| 7.04 Trustee Not Responsible for Recitals, Etc | 29 | |
| 7.05 Trustee and Others May Hold Securities | 29 | |
| 7.06 Moneys Held by Trustee or Paying Agent | 29 | |
| 7.07 Compensation of Trustee and Its Lien | 30 | |
| 7.08 Right of Trustee to Rely on Certificate of Certain Officers | 30 | |
| 7.09 Persons Eligible for Appointment As Trustee | 30 | |
| 7.10 Resignation and Removal of Trustee; Appointment of Successor | 31 | |
| 7.11 Acceptance of Appointment by Successor Trustee | 32 | |
| 7.12 Merger, Conversion or Consolidation of Trustee | 32 | |
| 7.13 Authenticating Agents | 33 | |
| 7.14 Preferential Collection of Claims | 34 | |
| VIII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY | 35 | |
| 8.01 Company to Furnish Trustee Names and Addresses of Holders | 35 | |
| 8.02 Preservation of Information; Communications to Holders | 35 | |
| 8.03 Reports by Trustee. | 35 | |
| 8.04 Reports by the Company | 35 | |
| IX CONCERNING THE HOLDERS | 36 | |
| 9.01 Evidence of Action Taken by Holders | 36 | |
| 9.02 Proof of Execution of Instruments and of Holding of Securities | 36 | |
| 9.03 Right of Revocation of Action Taken | 37 | |
| X SUPPLEMENTAL INDENTURES | 37 | |
| 10.01 Supplemental Indentures Without Consent of Holders | 37 | |
| 10.02 Supplemental Indentures With Consent of Holders | 39 | |
| 10.03 Effect of Supplemental Indentures | 40 | |
| 10.04 Notation on Securities in Respect of Supplemental Indentures | 40 | |
| 10.05 Opinion of Counsel and Officer’s Certificate to Be Given to Trustee | 40 | |
| XI CONSOLIDATION, MERGER AND SALE | 41 | |
| 11.01 Company May Consolidate or Merge, Etc | 41 | |
| 11.02 Conditions to Consolidation or Merger, Etc | 41 | |
| 11.03 Documents and Opinion to Be Furnished to the Trustee | 41 | |
| XII SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS | 42 | |
| 12.01 Satisfaction and Discharge. | 42 | |
| 12.02 Defeasance and Covenant Defeasance. | 43 | |
| 12.03 Application by Trustee of Funds Deposited for Payment of Securities. | 45 | |
| 12.04 Repayment of Moneys Held by Paying Agent | 46 | |
| 12.05 Return of Unclaimed Moneys | 46 | |
| 12.06 Reinstatement. | 46 | |
| XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | 46 | |
| 13.01 Personal Immunity from Liability of Incorporators, Stockholders, Etc | 46 | |
| XIV SUBMISSION TO JURISDICTION | 46 | |
| 14.01 Submission to Jurisdiction | 46 |
ii
INDENTURE, dated as of [●], between Envista Holdings Corporation, a Delaware corporation (the “Company”), and Wilmington Trust, National Association, a national banking association duly organized and existing under the laws of the United States of America, as trustee (the “Trustee”).
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debt securities to be issued in one or more series as provided in this Indenture (hereinafter called the “Securities”); and
WHEREAS, the Trustee has the power to enter into this Indenture and to accept and perform its duties as herein created.
NOW THEREFORE, each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Securities:
I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01 Definitions.
The following terms (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined (either directly or by reference) in the Trust Indenture Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings so assigned to such terms.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” means, with respect to any payment, tender, redemption, transfer, exchange, or conversion of or for beneficial interests in any Global Security, the rules and procedures of the Depositary that apply to such payment, tender, redemption, transfer, exchange, or conversion.
“Authenticating Agent” means any agent of the Trustee which at any time shall be appointed and acting pursuant to the provisions of Section 7.13.
“Authorized Officer” means the Chief Executive Officer, the Chief Financial Officer, the President or any Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary of the Company.
“Board of Directors” means the Board of Directors of the Company, or any duly authorized committee of such Board or any officers of the Company duly authorized so to act by such Board.
“Board Resolution” means a copy of a resolution or resolutions certified by the Corporate Secretary or an Assistant Secretary of the Company or by another appropriate officer of the Company, to have been duly adopted by the Board of Directors of the Company and to be in force and effect on the date of such certification and delivered to the Trustee.
“Business Day” means any day other than a Saturday, a Sunday, or any other day on which banking institutions in The City of New York or, with respect to any payment on the Securities, a Place of Payment, are authorized or required by law, regulation or executive order to close.
“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution and delivery of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
1
“Company Designation” has the meaning specified in Section 4.02.
“Consolidated Total Assets” means, with respect to any Person as of any date, the amount of total assets as shown on the most recent consolidated balance sheet of such Person, prepared in accordance with GAAP.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or (ii) any currency unit or composite currency for the purposes for which it was established.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business in respect of this Indenture shall be administered, which office at the date hereof is located at 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: Envista Holdings Notes Administrator, or such other address as the Trustee may designate from time to time by notice to the Holders or the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, partnerships, associations, companies and business trusts.
“debt securities” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Depositary” means, with respect to the Securities of any series issuable or issued in whole or part in the form of one or more Global Securities, the Person designated as Depositary pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
“Depositary Custodian” means the Trustee as custodian with respect to the Global Securities or any successor entity thereto.
“Dollar” and “$” mean the coin or currency of the United States which, at the time of payment, is legal tender for the payment of public and private debts.
“EDGAR” has the meaning specified in Section 8.04.
“Event of Default” has the meaning specified in Section 6.01.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Exchange Rate” has the meaning specified in Section 6.01.
“Exchange Rate Agent” means the entity appointed by the Company pursuant to Section 9.02.
“Finance Lease” means any Indebtedness represented by a lease obligation of a Person incurred with respect to real property or equipment acquired or leased by such Person and used in its business that is required to be recorded as a finance lease in accordance with GAAP.
“Foreign Currency” means a currency issued by the government of any country other than the United States of America.
“GAAP” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, such accounting principles as are generally accepted in the United States as of the date or time of any computation required hereunder.
2
“Global Security” means a Security evidencing all or part of a series of Securities issued to the Depositary for such series in accordance with Sections 2.04 and 3.03.
“Government Obligations” means securities which are (i) direct obligations of the United States or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or interest on the relevant Security shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States or such other government or governments, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.
“Holder” means a Person in whose name such Security is registered in the Security Register.
“Indebtedness” of any Person means, without duplication (1) any obligation of such Person for money borrowed, (2) any obligation of such Person evidenced by bonds, debentures, notes, or other similar instruments, (3) any reimbursement obligation of such Person in respect of letters of credit or other similar instruments which support financial obligations which would otherwise become Indebtedness, and (4) any obligation of such Person under any Finance Lease; provided, however, that “Indebtedness” of such Person shall not include any obligation of such Person to any Subsidiary of such Person or to any Person with respect to which such Person is a Subsidiary.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the form and terms of particular series of Securities established as contemplated by Section 3.01.
“interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after maturity, means interest payable after maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“mandatory sinking fund payment” has the meaning specified in Section 4.05.
“maturity,” when used with respect to any Security, means the date on which the principal (or a portion thereof) of such Security becomes due and payable as therein or herein provided, whether at Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.
“Officer’s Certificate” means a certificate signed by the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary of the Company and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company and who is reasonably acceptable to the Trustee.
“optional sinking fund payment” has the meaning specified in Section 4.05.
“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 6.02.
3
“Outstanding,” when used with reference to Securities, means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
1. Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
2. Securities, or portions thereof, for the payment or redemption of which moneys or, as provided in Section 12.01 or 12.02 hereof, Government Obligations, as the case may be, in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) (in each case, except as provided in Section 12.01 or 12.02, as the case may be); provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for giving such notice;
3. Securities in lieu of or in substitution for which other Securities shall have been duly authenticated and delivered pursuant to Section 3.06; and
4. Securities paid pursuant to the third paragraph of Section 3.06;
provided, however, that, in determining whether the Holders of the requisite principal amount of Outstanding Securities have taken any action, given any request, demand, authorization, direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the maturity thereof pursuant to Section 6.02; (B) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security, and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. Subject to the provisions of Section 315 of the Trust Indenture Act, in case of a dispute as to such right, any decision by the Trustee, taken upon the advice of counsel, shall be full protection to the Trustee.
“Paying Agent” means any Person authorized by the Company to pay the principal of, premium, if any, and interest, if any, on any Securities on behalf of the Company.
“Person” or “person” means an individual, a corporation, a limited liability company, a partnership, a trust, a joint venture, an association, a joint stock company, an unincorporated organization or a government or any agency or political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of any series, means the Corporate Trust Office or such other place or places where the principal of, premium, if any, and interest, if any, on the Securities of that series are payable as specified in accordance with Section 3.01.
“Redemption Date,” when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture or the terms of such Security, as applicable.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price (exclusive of accrued interest, if any) at which it is to be redeemed pursuant to this Indenture or the terms of such Security, as applicable.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the day specified for that purpose as contemplated by Section 3.01, whether or not such day shall be a Business Day.
“Required Currency” has the meaning specified in Section 1.14(a).
“Responsible Officer,” when used with respect to the Trustee, means any vice president, senior associate, associate or trust officer of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who at the time shall have direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Security” or “Securities” means one or more, as the case may be, of the Company’s debt securities authenticated and delivered under this Indenture, whether such debt securities may be senior or subordinated, secured or unsecured.
4
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Significant Subsidiary” means a Subsidiary of the Company that is a “significant subsidiary” as defined under Rule 1-02(w)(i) and (ii) of Regulation S-X under the Exchange Act (or any successor rule).
“Special Record Date” for the payment of any Defaulted Interest on the Securities of any series means a date fixed by the Company pursuant to Section 3.07.
“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest, as the case may be, is due and payable.
“stock” includes any and all shares, interests, participations or other equivalents (however designated) of corporate stock.
“Subsidiary” of any specified Person means any corporation, limited liability company, limited partnership, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
“Trust Indenture Act” means the United States Trust Indenture Act of 1939, as amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trustee Selection” has the meaning specified in Section 4.02.
“United States” means the United States of America (including the States thereof and the District of Columbia), its territories and possessions, the Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
1.02 Compliance Certificates and Opinions.
(a) Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with.
(b) Such Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture (other than the statement required by Section 5.06) shall also include:
(1) a statement that such Authorized Officer or counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of such examination or investigation upon which the statements or opinions contained in such Officer’s Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
5
1.03 Form of Documents Delivered to Trustee.
(a) 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.
(b) Any certificate, statement or opinion of an Authorized Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representation with respect to the matters upon which such certificate, statement or opinion is based is erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of or representations by an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, statement or opinion or representation with respect to such matters is erroneous.
(c) 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.
1.04 Notices, Etc., to Trustee, the Company.
Any request, demand, authorization, direction, notice, consent, waiver or act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(A) the Trustee by any Holder or by the Company shall be made, given, furnished or filed in writing to or with the Trustee at the Corporate Trust Office of the Trustee, and, unless otherwise herein expressly provided, any such document shall be deemed to be sufficiently made, given, furnished or filed upon its actual receipt by a Responsible Officer; or
(B) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid or overnight air courier guaranteeing next day delivery, to the Company addressed to it at Envista Holdings Corporation, 200 S. Kraemer Blvd., Building E, Brea, California 92821, Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by the Company.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that, upon request, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
1.05 Notice to Holders; Waiver.
(a) Where this Indenture provides for notice to Holders of Securities 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 of a Security, at such Holder’s address as it appears in the Security Register, not later than the latest date and not earlier than the earliest date prescribed for the giving of such notice. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities.
6
(b) 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.
(c) Any request, demand, authorization, notice, consent, election, waiver or other act required or permitted under this Indenture shall be in the English language.
(d) Notwithstanding any other provision of this Indenture or any Global Security, where this Indenture or any Global Security provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to Applicable Procedures, including by electronic mail in accordance with the standing instructions from the Depositary.
1.06 Conflict With Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the Trust Indenture Act, the required provision of the Trust Indenture Act shall control.
1.07 Effect of Headings and Table of Contents.
The Article and Section headings, the Trust Indenture Act reconciliation herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
1.08 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
1.09 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
1.11 Governing Law; Jury Trial Waiver.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, as applied to contracts made and performed within the State of New York, without regard to principles of conflicts of law. EACH OF THE COMPANY, THE TRUSTEE, AND EACH HOLDER OF A SECURITY, BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7
1.12 Legal Holidays.
Unless otherwise provided by, or pursuant to, Section 3.01, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of the principal of, premium, if any, or interest, if any, on such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided, that no additional interest shall accrue with respect to the payment due on such date for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the next succeeding Business Day.
1.13 Moneys of Different Currencies to be Segregated.
The Trustee shall segregate moneys, funds and accounts held by the Trustee hereunder in one currency (or unit thereof) from any moneys, funds or accounts in any other currencies (or units thereof), in accordance with applicable law and its then applicable accounting procedures.
1.14 Payment to be in Proper Currency.
(a) In the case of any Security denominated in any particular currency or currency unit (the “Required Currency”), except as otherwise provided herein, therein or in or pursuant to the related Board Resolution(s) or supplemental indenture establishing the series of such Security as provided herein, the obligation of the Company to make any payment of principal of, premium, if any, or interest, if any, thereon, shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in any currency or currency unit other than the Required Currency, except to the extent that such tender or recovery, if exchanged for the Required Currency by the Trustee at its election as provided in the next sentence, shall result in the Trustee timely holding the full amount of the Required Currency then due and payable.
(b) Neither the Trustee nor any Paying Agent shall be obligated to make any payment in any currency or currency unit other than the currency or currency unit tendered to, or recovered by, the Trustee or such Paying Agent. Notwithstanding the foregoing, if any such tender or recovery is made in other than the Required Currency, the Trustee may take such actions as it considers appropriate to exchange such other currency or currency unit for the Required Currency.
(c) If the Required Currency amount is less than the Required Currency amount expressed to be due to the recipient or the Trustee under the Securities, the Company will indemnify such recipient and/or the Trustee against any loss sustained by it as a result. In any event, the Company will indemnify the recipient against the cost of making any such purchase. These indemnities constitute a separate and independent obligation from the Company’s other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any waiver granted by any such recipient, such holder of a Security or the Trustee (other than a waiver of the indemnities set out herein) and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Security or to the Trustee.
1.15 Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic methods shall be deemed to be their original signatures for all purposes. This Indenture may be executed by way of electronic signatures, and any such electronic signature shall have the same binding effect as a physical signature. For the avoidance of doubt, 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 images of manually executed signatures transmitted by electronic format (including “pdf,” “tif” or “jpg”) and electronic signatures (including DocuSign and AdobeSign), 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; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee, pursuant to reasonable procedures approved by the Trustee.
1.16 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
8
1.17 Rules of Construction.
Unless the context otherwise requires:
(A) a term has the meaning assigned to it;
(B) “or” is not exclusive;
(C) words in the singular include the plural and in the plural include the singular;
(D) provisions apply to successive events and transactions;
(E) “including” means “including without limitation”; and
(F) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture.
II SECURITY FORMS
2.01 Forms Generally.
The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board 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 the rules of any securities exchange or as may, consistently herewith, be determined by the Authorized Officers executing such Securities as evidenced by their execution of the Securities. If the form of Securities of any series is established by action taken pursuant to one or more Board Resolution(s), a copy of an appropriate record of any such action taken shall be certified by the Corporate Secretary or an Assistant Secretary, or another appropriate Authorized Officer, of the Company, as the case may be, and delivered to the Trustee at or prior to the delivery of the written order(s) contemplated by Section 3.03 for the authentication and delivery of the initial Securities of each series. Any such Board Resolution or record of such action shall have attached thereto a true and correct copy of the form of Security approved by or pursuant to such Board Resolution(s). The Trustee’s certificate of authentication shall be in substantially the form set forth in this Article II.
The definitive Securities of each series shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner, including any manner permitted by the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
9
2.02 Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein issued under the within-mentioned Indenture.
| Wilmington Trust, National Association, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
2.03 Forms of Securities.
Each Security shall be in one of the forms approved from time to time by or pursuant to a Board Resolution or one or more indentures supplemental hereto which shall set forth the information required by Section 3.01. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, the Securities of each series shall be issuable in registered form without coupons.
2.04 Book-Entry Provisions for Global Securities.
If the Company shall establish, pursuant to or as contemplated by Section 3.01, that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction, and (iv) shall bear a legend to substantially the following effect:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE 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 TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
Each Depositary designated pursuant to or as contemplated by Section 3.01 for a Global Security to be delivered in the United States must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series, or if at any time the Depositary for the Securities of such series shall no longer be a clearing agency registered under the Exchange Act and any other applicable statute or regulation, the Company shall use its commercially reasonable efforts to appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.01(N) shall no longer be effective with respect to the Securities of such series and the Company shall execute and the Trustee, upon receipt of a written order of the Company for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company shall execute and the Trustee, upon receipt of a written order of the Company for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
10
If specified pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary, a new Security or Securities of the same series, of any authorized denomination as requested by such Person, in aggregate principal amount equal to, and in exchange for, such Person’s beneficial interest in the Global Security; and
(B) to such Depositary, a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities so delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the Company shall execute and the Trustee shall authenticate and deliver, Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be cancelled by the Trustee. Securities issued in exchange for a Global Security pursuant to Section 3.05 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
The Company initially appoints the Trustee to act as the Security Registrar and Paying Agent and to act as Depositary Custodian with respect to the Global Securities. The Company has entered into a letter of representations with the Depositary in the form provided by the Depositary and the Trustee and each agent of the Company or the Trustee are hereby authorized to act in accordance with such letter and Applicable Procedures.
III THE SECURITIES
3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series shall, except as otherwise provided as contemplated by this Section 3.01, rank equally and pari passu with all other unsecured and unsubordinated indebtedness of the Company. There shall be established, in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(A) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities, except to the extent that additional Securities of an existing series are being, or will be, issued);
(B) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 4.03 or 10.04); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased above such amount by a Board Resolution to such effect or as provided in the supplemental indenture establishing the Securities of such series;
(C) the date or dates on which the principal and premium, if any, on the Securities of the series are payable or the method of determination thereof;
(D) the rate or rates (which may be fixed or variable), or the method of determination thereof, at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Interest Payment Date;
(E) if other than the currency of the United States, the currency or currencies or currency unit or units, including composite currencies, in which payment of the principal of, premium, if any, or interest, if any, on the Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States for any purpose, including for purposes of the definition of “Outstanding” in Section 1.01;
(F) if the principal of, premium, if any, or interest, if any, on the Securities of the series are to be payable, at the election of the Company, or a Holder, in a currency or currencies or currency unit or units other than that in which the Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the period or periods within which, and the terms and conditions upon which, such election may be made or the other circumstances under which any of such Securities are to be so payable, and any provision requiring the Holder to bear currency exchange costs by deduction from such payments;
11
(G) if the amount of payments of principal of, premium, if any, or interest, if any, on, any of the Securities of the series may be determined with reference to an index, formula, or other method, the manner in which such amounts shall be determined;
(H) the place or places where the principal of, premium, if any, and interest, if any, on, the Securities of the series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made;
(I) if applicable, the period or periods within or the date or dates on which, the price or prices at which, and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(J) if applicable, the period or periods within or the date or dates on which, the price or prices at which, and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Holders;
(K) the obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(L) the terms of any right to convert or exchange Securities of the series, either at the option of the Holder thereof or the Company, into or for shares of common stock of the Company or other securities or property (whether of the Company, or any other Person), including, without limitation, the period or periods within which and the price or prices (including adjustments thereto) at which any Securities of the series shall be converted or exchanged, in whole or in part;
(M) whether the Securities of the series, or any portion thereof, shall initially be issuable in the form of a temporary Global Security representing all or such portion of the Securities of such series and provisions for the exchange of such temporary Global Security for definitive Securities of such series;
(N) whether the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the Depositary for such Global Security or Securities;
(O) the denominations in which Securities of the series, if any, shall be issuable, if other than the denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(P) if other than the principal amount thereof, the portion of the principal amount of any of the Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(Q) the application, if any, of Section 12.01, or such other means of satisfaction and discharge as may be specified for the Securities of the series;
(R) whether the Securities of the series, in whole or any specified part, shall be subject to defeasance or covenant defeasance pursuant to Section 12.02 and, if so, the provisions relating thereto and the manner in which any election by the Company to provide for defeasance or covenant defeasance of such Securities shall be evidenced if different from the provisions herein relating thereto;
(S) the appointment of any Paying Agent or Agents for the Securities of such series, if other than the Trustee;
(T) any deletions from or modifications of or additions to the Events of Default set forth in Section 6.01 which apply to the Securities of the series, 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 6.02 or any other modifications to Article VI;
(U) any deletions from or modifications of or additions to the covenants set forth in Article V which apply to the Securities of the series;
(V) any limitations on the rights of the Holders of the Securities of the series to transfer or exchange such Securities or to obtain the registration of transfer thereof;
12
(W) whether any payment or other obligations on Securities of such series are to be secured by any property and, if so, the nature of such security and provisions related thereto;
(X) whether payment of amounts due with respect to Securities of such series is subordinated in right of payment to the prior payment of any other indebtedness, and, if so, the extent and the manner of such subordinations and any other provisions relating thereto;
(Y) the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
(Z) the form of the Securities of the series (including legends, if any, to be imprinted thereon and the circumstances, if any, which require the imprinting of such legends); and
(AA) any other terms of the Securities of such series and any other deletions from or modification of or additions to this Indenture in respect of such Securities.
If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action shall be delivered to the Trustee at or prior to the initial issuance of Securities of such series. No Officer’s Certificate may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect to any series of Securities except as the Trustee may agree in writing.
3.02 Denominations.
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, and except as provided in Section 3.03, the Securities of each series shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the Authorized Officers executing the same may determine with the reasonable approval of the Trustee.
3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be signed on behalf of the Company by an Authorized Officer. Such signatures may be manual, facsimile or other electronic signatures of the present or any future such Authorized Officers and may be imprinted or otherwise reproduced on the Securities.
Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, manually executed by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder.
Securities bearing the manual, facsimile or other electronic signatures of individuals who were at any time the Authorized Officers 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. The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by an Authorized Officer, or pursuant to such procedures acceptable to the Trustee and such recipients, without any further action by the Company. 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 shall be fully protected in relying upon the documents specified in Section 314 of the Trust Indenture Act, and in addition:
(A) the instrument or instruments establishing the form or forms and terms of the Securities of such series, as provided in Sections 2.01 and 3.01;
(B) an Opinion of Counsel prepared in accordance with Section 1.02, to the following effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations as such counsel shall deem appropriate:
(i) the forms and terms of such Securities have been established in conformity with Section 2.01 and Section 3.01 of this Indenture;
13
(ii) all conditions precedent set forth in Sections 2.01, 3.01 and 3.03 of this Indenture to the authentication and delivery of such Securities have been complied with; and
(iii) such Securities when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by this Indenture, and enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
The Trustee shall have the right to decline to authenticate and deliver the Securities of such series if the Trustee reasonably determines that such action may not lawfully be taken, would expose the Trustee to personal liability or would add to the obligations and duties of the Trustee hereunder in any material respect. In addition, prior to the authentication upon original issuance of the first Security of a series to be issued which is denominated in a Foreign Currency or currency unit the Trustee shall have the right to decline to authenticate and deliver any Securities of such series if the Trustee determines in its reasonable discretion that it would not be able to properly fulfill its obligations hereunder in respect of such Securities or to do so would be unduly burdensome to the Trustee.
Each Security shall be dated the date of its authentication.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate(s) otherwise required pursuant to Section 3.01 or the written order of the Company and Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior to the time of 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.
3.04 Temporary Securities.
Pending the preparation of a permanent Global Security or definitive Securities of any series, the Company may execute, and upon compliance with Section 3.03, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, or engraved or produced by any combination of these methods, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Authorized Officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series, such temporary securities may be in global form, representing all or a portion of the Outstanding Securities of such series.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for such series. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except as otherwise specified as contemplated by Section 3.01 with respect to the payment of interest on Securities in temporary form. Such exchanges shall be made by the Company at its expense and without any charge therefor.
3.05 Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one of the offices or agencies maintained in accordance with Section 5.02 a register or registers 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 such Securities and of transfers of such Securities. Said office or agency is hereby appointed the “Security Registrar” for the purpose of registering such Securities and transfers of such Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at an office or agency maintained in accordance with Section 5.02, 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 and of like tenor, of any authorized denominations and of a like aggregate principal amount and Stated Maturity. In no case shall there be more than one Security Register for a series of Securities.
At the option of the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount and Stated Maturity upon surrender of the Securities to be exchanged at an office or agency maintained in accordance with Section 5.02. 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.
14
Notwithstanding any other provision of this Section 3.05, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary to the 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 to a nominee of such successor Depositary.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any particular series during a period beginning at the opening of business 15 days before the day of selection of Securities of such series to be redeemed under Section 4.02 and ending at the close of business on the day of the sending of a notice of redemption of Securities of such series selected for redemption or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no 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.
None of the Trustee nor any Paying Agent or Security Registrar, nor the Company, shall have any responsibility for any actions taken or not taken by the Depositary.
3.06 Mutilated, Destroyed, Lost and Stolen Securities.
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 (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be requested by them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon written request, 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 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 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.
15
3.07 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
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 at the close of business on the relevant Regular Record Date, and such Defaulted Interest shall be paid by the Company, at its election, as provided in either clause (A) or (B) below:
(A) The Company may elect to make payment of any Defaulted Interest 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 Special Record Date shall be fixed in the following manner. The Company shall notify the Trustee, in writing, as to 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 reasonably 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 Company 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, unless otherwise agreed to by the Trustee, not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee, in writing, 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 mailed, first-class postage prepaid, to each Holder of Securities of such series at such Holder’s address as it appears in the Security Register or sent pursuant to Applicable Procedures, 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 given, 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.
(B) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be reasonably deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, 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.
3.08 Persons Deemed Owners.
The Company and the Trustee, and their respective agents, shall treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.07) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security shall be overdue, and neither the Company nor the Trustee, nor their respective agents, shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any payment in respect of a sinking fund or analogous obligation shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and 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 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee pursuant to its standing procedures, and the Trustee shall, upon written request therefor, deliver to the Company a certificate of cancellation in respect thereof.
16
3.10 Computation of Interest; Calculations.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, any 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 shall be responsible for making calculations called for under the Securities and this Indenture, including but not limited to determination of interest, additional amounts, Redemption Price, premium, if any, and any other amounts payable on the Securities. The Company will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent verification.
3.11 CUSIP Numbers.
The Company in issuing any Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall as a convenience use “CUSIP” numbers in notices to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
IV REDEMPTION OF SECURITIES AND SINKING FUNDS
4.01 Applicability of Right of Redemption.
Redemption of Securities (other than pursuant to a sinking fund or analogous provision) permitted by the terms of any series of Securities shall be made in accordance with such terms and Sections 4.02, 4.03 and 4.04; provided, however, that, notwithstanding anything to the contrary in this Article IV, if any such terms of a series of Securities shall conflict with any provisions of this Article IV, the terms of such series shall govern.
4.02 Election to Redeem; Notice of Redemption; Partial Redemption.
The election of the Company to redeem any Securities of any series shall be evidenced by, or pursuant to an Officer’s Certificate at the time notice of redemption is sent to the Holders of the Securities. In case the Company shall desire to exercise such right to redeem all, or, as the case may be, any part of the Securities of any series in accordance with the right reserved so to do, it shall give notice of such redemption to Holders of the Securities to be redeemed as hereinafter provided in this Section 4.02.
Any notice of redemption to be given to the Holders of Securities to be redeemed as a whole or in part shall be given in the manner provided in Section 1.05 not less than 10 nor more than 60 days prior to the date fixed for redemption. Any such notice of redemption may, in the Company’s discretion, be given subject to the satisfaction of one or more conditions precedent. In that case, such notice of redemption shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Company by the relevant Redemption Date.
Each such notice of redemption shall specify the date fixed for redemption and the Redemption Price (or manner of calculation if not then known) at which Securities are to be redeemed, shall state the Section of this Indenture and the Securities authorizing redemption and shall state that payment of the Redemption Price of the Securities to be redeemed, together with interest accrued thereon to, but excluding, the date fixed for redemption (except that if such Redemption Date is an Interest Payment Date such interest due on such date with respect to a particular Security shall instead be payable on such Interest Payment Date to the Holder of record at the close of business on the Regular Record Date for such Interest Payment Date), will be made at the office or agency to be maintained by the Company in accordance with Section 5.02 (or, if desired by the Company, at the Corporate Trust Office of the Trustee) upon presentation and surrender of such Securities and that from and after said date fixed for redemption any interest thereon will cease to accrue, such Securities subject to such redemption shall cease to be outstanding and the Holder(s) thereof shall have no rights with respect thereto other than the right to receive the Redemption Price upon such presentation and surrender. The notice shall state the CUSIP number and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
If less than all the Securities of a series are to be redeemed, the notice to each Holder of Securities to be redeemed shall identify such Holder’s Securities to be redeemed as a whole or in part. In case any Security of a series is to be redeemed in part only (which part shall be an authorized denomination of the Securities of such series as set forth pursuant to Section 3.01), the notice which relates to such Securities shall state the portion of the principal amount to be redeemed, and that on and after the Redemption Date, upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion thereof shall be issued (or transferred by book entry). No Security whose denomination is the minimum denomination, as set forth pursuant to Section 3.01, of principal amount may be redeemed in part.
17
If less than all of the Securities of a series are to be redeemed at any time, and the Securities of such series are Global Securities, they will be selected for redemption in accordance with Applicable Procedures. If the Securities of such series are not Global Securities, the Trustee shall select the Securities to be redeemed among the Holders of the Securities (1) in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed or (2) if the Securities are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee shall deem fair and appropriate or in accordance with applicable Depositary procedures.
To the extent that the Securities of any series have different terms, the Company shall designate the Securities to be redeemed if less than all of a series are to be redeemed (“Company Designation”). If less than all the Securities of a series having the same terms are to be redeemed, the Company shall give the Trustee, not less than 10 days (or such lesser number of days as the Trustee shall approve) prior to the date such notice of redemption is to be sent to the Holders of the Securities, written notice of the aggregate amount of the Securities to be redeemed. If the Securities of such series are Global Securities, they will be selected for redemption in accordance with Applicable Procedures. If the Securities of such series are not Global Securities, the Trustee shall select, in such manner as is described in the immediately prior paragraph, the Securities of such series or portions thereof to be redeemed (“Trustee Selection”), and shall thereafter promptly notify the Company and any Paying Agent in writing of the Securities of such series or portions thereof to be redeemed. Except in the event of a Company Designation or a Trustee Selection, notice of redemption sent as contemplated by Section 1.05 need not identify particular Securities to be redeemed.
Any notice of redemption may be given by the Company pursuant to this Section 4.02 or may be given, at the Company’s written direction, which direction together with the notice to be given is delivered to the Trustee at least 5 days (or such lesser number of days as the Trustee shall approve) prior to the date such notice is to be given, by the Trustee in the name and at the expense of the Company.
4.03 Payment of Securities Called for Redemption.
If notice of redemption shall have been given in the manner provided in Section 4.02, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable Redemption Price, together with interest accrued thereon, if any, to, but excluding, the date fixed for redemption, and on and after such date of redemption (unless the Company shall default in the payment of such Securities or portions thereof at the Redemption Price, together with interest accrued thereon, if any, to, but excluding, the date fixed for redemption) any interest on the Securities or portions of Securities so called for redemption shall cease to accrue and such Securities and portions of Securities shall be deemed not to be outstanding hereunder and shall not be entitled to any benefit under this Indenture except for the right of the Holder(s) thereof to receive, in accordance with the next sentence, payment of the Redemption Price, together, if applicable, with accrued interest thereon, if any, to, but excluding, the date fixed for redemption. On presentation and surrender of such Securities, on or after the Redemption Date at the Place of Payment specified in the notice of redemption, such Securities or specified portions thereof shall be paid and redeemed by the Company at the applicable Redemption Price together with interest accrued thereon, if any, to, but excluding, the date fixed for redemption; provided, however, that unless otherwise specified as contemplated by Section 3.01, installments of interest that mature on Securities on or prior to the Redemption Date shall 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 Regular Record Dates according to their terms and the provisions of Section 3.07.
Upon presentation and surrender of any Security which is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder or transfer by book entry, at the expense of the Company, a new Security or Securities of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so surrendered.
4.04 Deposit of Funds for Redemption of Securities.
On or prior to 11:00 a.m. Eastern Time on the date fixed for redemption of any Securities as hereinbefore provided in this Article IV, the Company shall deposit in trust with the Trustee or with any Paying Agent (or if and to the extent that the Company shall be acting as its own Paying Agent, the Company shall set aside, segregate and hold in trust) funds sufficient to redeem the Securities or portions thereof to be redeemed on such Redemption Date, at the applicable Redemption Price, together with interest accrued thereon, if any, to, but excluding, the Redemption Date.
4.05 Applicability of Sinking Fund.
Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms of such series of Securities established pursuant to Section 3.01 shall be made in accordance with such terms of such series of Securities established pursuant to Section 3.01 and this Article IV; provided, however, that, notwithstanding anything to the contrary in this Article IV, if any such terms of a series of Securities shall conflict with any provision of this Article IV, the terms of such series shall govern.
18
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 4.06.
4.06 Satisfaction of Mandatory Sinking Fund Payments with Securities.
Subject to Section 4.07, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (i) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (ii) receive credit for the principal amount of Securities of that series which have been previously delivered to the Trustee by the Company or redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
4.07 Redemption of Securities for Sinking Funds.
Not less than 10 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, 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 through delivery and/or crediting of Securities of that series pursuant to Section 4.06 and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall be irrevocable, and upon its delivery, the Company shall be obligated to make the payment, delivery, and/or crediting therein referred to, if any, on or prior to such sinking fund payment date. In the case of the failure of the Company to deliver such certificate, the sinking fund payment due with respect to the next sinking fund payment date for that series of Securities shall be paid entirely in cash and shall be made in an amount sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 4.06 and without the right to make any optional sinking fund payment with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash, plus any unused balance of any preceding sinking fund payments made in cash, which shall equal or exceed $100,000 (or the equivalent in Foreign Currency or currency units in which Securities of the series are payable if applicable), or a lesser sum if the Company shall so request, with respect to the Securities of any particular series, shall be applied by the Trustee, a Paying Agent or the Company, if it acts as its own Paying Agent, on the sinking fund payment date next following the date of such payment, to the redemption of such Securities at the Redemption Price specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the sinking fund payment date. Any sinking fund moneys not so applied or allocated to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee or such Paying Agent or set aside and segregated by the Company for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 4.07.
Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee, such Paying Agent or the Company on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities shall be applied by the Trustee, such Paying Agent or the Company, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of principal of such Securities at maturity.
Not more than 60 days and not less than 30 days prior to each sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in accordance with Section 4.02. The Company shall cause notice of the redemption thereof to be given not less than 30 nor more than 60 days prior to the sinking fund payment date in the manner provided in Section 4.02, except that the notice of redemption shall also state that the Securities of such series are being redeemed by operation of the sinking fund and the sinking fund payment date. Such notice having been duly given, the redemption of such Securities shall be made on the sinking fund payment date upon the terms and in the manner stated in Section 4.03.
Prior to each sinking fund payment date, the Company shall pay to the Trustee or to a Paying Agent in cash (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 5.05(b)) a sum equal to any interest accrued to, but excluding, the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 4.07.
19
V PARTICULAR COVENANTS
5.01 Payments of Principal, Premium, if any, and Interest, if any.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if any, on the Securities of that series at the times and places and in the manner provided herein and in the Securities of that series.
5.02 Office or Agency for Certain Purposes.
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 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 any such office or agency.
The Company may also from time to time designate one or more other offices or agencies (in or outside The City of New York) 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 accordance with the requirements set forth above. 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.
5.03 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 5.02 with respect to the Securities of any series and, if expressly provided pursuant to Section 3.01, any additional covenants applicable to the Securities of such series if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series affected (all such series voting together as a single class), by act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
5.04 Appointments to Fill Vacancies in Trustee’s Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
5.05 Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee with respect to any series of Securities, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee subject to this Section 5.05, that it will, in addition to fulfilling the duties provided in Section 317 of the Trust Indenture Act, at any time during the continuance any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. Upon any default under Section 6.01(E) or (F), the Trustee shall automatically become the Paying Agent.
(b) If the Company shall act as its own Paying Agent with respect to any series of Securities, it will comply with Section 317 of the Trust Indenture Act.
(c) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, at or prior to 11:00 a.m. Eastern Time on each due date (or, with respect to Securities issued outside the United States, at or prior to 5:00 p.m. Eastern Time on the day prior to each due date) of the principal of, premium, if any, or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Holders of such Securities, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
(d) Anything in this Section 5.05 to the contrary notwithstanding, the Company may, at its option, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by it, or by any Paying Agent hereunder, as required by this Section 5.05, such sums to be held by the Trustee upon the trusts herein contained.
20
(e) Anything in this Section 5.05 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.05 is subject to Sections 12.04 and 12.05.
5.06 Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 120 days after the end of its fiscal year, a written statement (which need not be contained in or accompanied by an Officer’s Certificate) signed by its principal executive officer, principal financial officer or principal accounting officer or other appropriate Authorized Officer permitted by the Trust Indenture Act, stating whether or not, to the best of his or her knowledge, the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to notice requirements or periods of grace) and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which he or she may have knowledge.
VI REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
6.01 Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless such event is specifically deleted or modified in or pursuant to the supplemental indenture or Officer’s Certificate establishing the terms of such series pursuant to Section 3.01 of this Indenture:
(A) default in the payment of any interest on any of the Securities of such series when such interest becomes due and payable, and continuance of such default for a period of 30 days;
(B) default in the payment of any principal of or premium, if any, on, any of the Securities of such series when due (whether at maturity or otherwise and whether payable in cash or securities);
(C) default in the deposit of any sinking fund payment or payment under any analogous provision when due with respect to any of the Securities of such series;
(D) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture or any Security of such series (other than a covenant or warranty for which the consequences of breach or nonperformance are addressed elsewhere in this Section 6.01 or a covenant or warranty which has expressly been included in this Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach (without such default or breach having been cured or waived in accordance with the provisions of this Indenture) for a period of 90 days after the Company has received written notice, by registered or certified mail or overnight air courier guaranteeing next day delivery, delivered by the Trustee or after the Company and the Trustee have received written notice, by registered or certified mail or overnight air courier guaranteeing next day delivery, delivered by the Holders of at least 30% in aggregate principal amount of the Outstanding Securities (with all series voting together as a single class), specifying such default or breach and requiring it to be remedied and stating that such notice is a “notice of default” hereunder;
(E) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or any Significant Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary under any applicable law, or appointing a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of substantially all of the property of the Company or any Significant Subsidiary, or ordering the winding up or liquidation of the affairs of the Company or any Significant Subsidiary, and the continuance of any such decree or order for relief unstayed and in effect for a period of 60 consecutive days;
21
(F) the commencement by the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or any Significant Subsidiary to the entry of a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or such Significant Subsidiary, or the filing by the Company or any Significant Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by the Company or any Significant Subsidiary to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or similar official of the Company or such Significant Subsidiary or of substantially all of the property of the Company or such Significant Subsidiary, or the making by the Company or any Significant Subsidiary of an assignment for the benefit of creditors, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action;
(G) (a) a failure to make any payment at maturity, including any applicable grace period, on any Indebtedness of the Company (other than Indebtedness of the Company owing to any of its Subsidiaries) outstanding in an amount, at the time of such failure, in excess of the greater of (i) $250.0 million and (ii) 5% of Consolidated Total Assets of the Company and continuance of such failure to pay or (b) a default on any Indebtedness of the Company (other than Indebtedness owing to any of its Subsidiaries), which default results in the acceleration of such Indebtedness in an amount, at the time of such acceleration, in excess of the greater of (i) $250.0 million and (ii) 5% of Consolidated Total Assets of the Company without such Indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled, in the case of clause (a) or (b) above, for a period of 30 days after such failure to pay or acceleration, as applicable; provided, however, that if any failure, default or acceleration referred to in clause (a) or (b) above ceases or is cured, waived, rescinded or annulled, then the Event of Default will be deemed cured; or
(H) any other Event of Default provided with respect to Securities of such series, which is specified in an Officer’s Certificate or supplemental indenture hereto pursuant to Section 3.01.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal or any premium or interest on any Security is payable in a currency other than the currency of the United States of America and such currency is not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in the currency of the United States of America in an amount equal to the currency of the United States of America equivalent of the amount payable in such other currency, as determined by the Exchange Rate Agent by reference to the noon buying rate in The City of New York for cable transfers for such currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made under such circumstances in the currency of the United States of America where the required payment is in a currency other than the currency of the United States of America will not constitute an Event of Default under this Indenture.
22
Notwithstanding anything to the contrary in this Indenture, with respect to any default or Event of Default, the words “exists,” “is continuing” or similar expressions with respect thereto shall mean that the default or Event of Default has occurred and has not yet been cured or waived; provided that it is understood and agreed that any court of competent jurisdiction may (x) extend or stay any grace period prior to when any actual or alleged default becomes an actual or alleged Event of Default or (y) stay the exercise of remedies by the Trustee upon the occurrence of an actual or alleged Event of Default, in each case, in accordance with the requirements of applicable law. If any default or Event of Default occurs due to (i) the failure by the Company to take any action by a specified time, such default or Event of Default shall be deemed to have been cured at the time, if any, that the Company takes such action or (ii) the taking of any action by the Company that is not then permitted by the terms of the Indenture, such default or Event of Default shall be deemed to be cured on the earlier to occur of (x) the date on which such action would be permitted at such time to be taken under the Indenture, including pursuant to an applicable amendment or waiver permitting such action, or otherwise and (y) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by the Indenture (including after giving effect to any amendments or waivers).
6.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause (E) or (F) of Section 6.01 with respect to the Company but not with respect to any Significant Subsidiary) with respect to Securities of any series occurs and is continuing, then either the Trustee or the Holders of not less than 30% in aggregate principal amount of the Outstanding Securities (with all series voting together as a single class) may declare the principal of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount, as the case may be, and such accrued and unpaid interest shall become immediately due and payable. If an Event of Default specified in clause (E) or (F) of Section 6.01 with respect to the Company occurs, then the principal of all of the Securities of each series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Securities of such series.
At any time after Securities of any series have been accelerated (whether by declaration of the Trustee or the Holders or automatically) and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of such series (together with any other series of Securities, all such series voting together as a single class), by written notice to the Company and the Trustee, may rescind and annul such acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default with respect to that series have been cured or waived as provided in Section 6.07, except nonpayment of principal (or such lesser amount) or interest that has become due solely because of the acceleration, and amounts owing to the Trustee pursuant to Section 7.07 have been paid. No such rescission shall affect any subsequent default or impair any right consequent thereon.
23
The Company and the Trustee may, to the extent provided in Section 10.01, enter into one or more indentures supplemental hereto with respect to any series of the Securities which may provide for additional, different or fewer Events of Default with respect to such series of Securities. Additional, different or fewer Events of Default with respect to such series of Securities may also be set forth pursuant to Section 3.01.
6.03 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company covenants that (i) in case a default shall be made in the payment of any installment of interest on any of the Securities, as and when the same shall become due and payable, and such default shall have continued for a period in excess of 30 days, or (ii) in case a default shall be made in the payment of the principal of or premium, if any, on any of the Securities when and as the same shall have become due and payable, whether upon maturity of the Securities or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount that then shall have become due and payable on such Securities for principal and premium, if any, interest, if any, with interest upon the overdue principal and premium, if any, of each such Security and (to the extent legally enforceable under applicable law) upon any installments of interest, at the rate borne by such Security; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its gross negligence or willful misconduct.
All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities of such series. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Securities of a series, and it shall not be necessary to make any Holders of the Securities of such series parties to any such proceedings.
In case of an Event of Default hereunder with respect to Securities of a particular series, the Trustee may, but, unless first requested so to do by the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series and furnished with indemnity satisfactory to the Trustee against all costs, expenses and liabilities, shall not be under any obligation to, proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceedings in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities), its creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be unpaid for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. 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’ committee or other similar committee. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of the Holder of any Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of any Security in any such proceeding.
24
6.04 Application of Proceeds.
Any money or property collected by the Trustee with respect to a series of Securities pursuant to Section 6.03, and after an Event of Default any money or other property distributable in respect of the Company’s obligations under this Indenture, shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such moneys or property:
FIRST: To the payment of all costs and expenses in connection with the collection of such moneys, and all amounts payable to the Trustee, its agents and attorneys under Section 7.07; and
SECOND: To the payment of the entire amounts then due and unpaid upon the Securities in respect of which or for the benefit of which such moneys shall have been collected, without any preference or priority, ratably according to the amounts due and payable upon such Securities upon presentation of the several Securities and notation of such payment thereon, if partly paid, and upon surrender thereof, if fully paid.
Any surplus then remaining shall be paid to the Company or to such other person as shall be entitled to receive it.
6.05 Limitations on Suits by Holders.
Except as set forth in Section 316(b) of the Trust Indenture Act, no Holder of any Security of any series shall have any right by virtue or by availing itself of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of the series, and unless also the Holders of no less than 30% in aggregate principal amount of the Outstanding Securities of that series shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered, and if requested, provided to the Trustee such security or indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of security or indemnity, shall have failed to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.07; it being understood and intended, and being expressly covenanted by the Holder of every Security of such series with every other Holder of Securities of such series and the Trustee, that no one or more Holders of Securities of such series shall have any right in any manner whatever by virtue or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of the Holders of any other of Securities or to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of such series.
6.06 Powers and Remedies Cumulative; Delay or Omission Not Waiver.
All powers and remedies given by this Article VI to the Trustee or to the Holders of Securities of any series shall, to the extent permitted by law and subject to Section 6.05, be deemed cumulative and not exclusive of any other such powers and remedies or of any other powers or remedies available to the Trustee or such Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to Section 6.05, every power and remedy given by this Article VI or by law to the Trustee or to such Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by such Holders.
25
6.07 Control by Holders; Waiver of Default.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to Securities of such series; provided, however, that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, involve the Trustee in personal liability or have been determined by the Trustee to be unduly prejudicial to the rights of other Holders of Securities (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders); provided further, that nothing in this Indenture shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction by such Holders. The Holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to the Securities of such series and its consequences, except (i) a default in the payment of the principal of, premium, if any, or interest, if any, on any of the Securities of such series or (ii) in respect of a covenant or provision hereof which, under Section 10.02, cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. In the case of any such waiver, such default shall cease to exist, any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
6.08 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant; provided, however, that this Section 6.08 shall not apply to a suit by the Trustee or the Company, a suit by a Holder pursuant to Section 6.05 hereof, or a suit by Holders of more than 10% in principal amount of the then Outstanding Securities of any series.
VII CONCERNING THE TRUSTEE
7.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of willful misconduct or negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
26
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(c) shall not be construed to limit the effect of Section 7.01(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it pursuant to Section 6.07; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01.
(e) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder. The permissive rights or powers of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
7.02 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series as to which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall transmit to all Holders of Securities of such series notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any), or interest, if any, on any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 6.01(D) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 7.02, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
7.03 Certain Rights of Trustee.
Except as otherwise provided in Section 315 of the Trust Indenture Act:
(A) The Trustee may conclusively rely and shall be protected in acting, or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document (whether in its original, facsimile or electronic form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
27
(B) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by an Authorized Officer thereof (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the Corporate Secretary or an Assistant Secretary, or another appropriate officer, of the Company;
(C) The Trustee may consult with counsel of its selection, and the advice of 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;
(D) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered, and if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby;
(E) The Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(F) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture or other paper or document with respect to such series of Securities, 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, during normal business hours of the Company and upon reasonable prior notice to the Company, to examine the books, records and premises of the Company, personally or by agent or attorney, the reasonable costs thereof to be reimbursed to the Trustee by the Company;
(G) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any acts or omissions on the part of any agent or attorney appointed with due care by it hereunder;
(H) In no event shall the Trustee be responsible or liable to any Holder for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(I) The Trustee shall not be deemed to have knowledge of any default or Event of Default (except with respect to an Event of Default pursuant to Section 6.01(A) or Section 6.01(B), but then only if the Trustee is also the Paying Agent) with respect to the Securities of any series unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities of such series and this Indenture;
(J) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated, reimbursed, indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder;
28
(K) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture;
(L) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access (provided that the Trustee did not exercise gross negligence or willful misconduct in permitting any such hacking, cyber-attack or other use or infiltration of the Trustee’s technological infrastructure), or other unavailability of the Federal Reserve Bank wire or electronic or other wire or communication facility; 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; and
(M) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
7.04 Trustee Not Responsible for Recitals, Etc.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication and the representation as to the power of the Trustee to enter into this Indenture and perform its duties, shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture. The Trustee shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee. The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions, or agreements on the part of the Company but the Trustee may require full information and advice as to the performance of the aforementioned covenants. The Trustee shall not be responsible for any statement in any document in connection with the sale of the Securities other than information about the Trustee provided by the Trustee to the Company for incorporation or use in any such documents.
7.05 Trustee and Others May Hold Securities.
The Trustee or any Paying Agent or Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or any other obligor on the Securities with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
7.06 Moneys Held by Trustee or Paying Agent.
Subject to Sections 12.04 and 12.05, all moneys received by the Trustee or any Paying Agent, need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company. The provisions of this Section 7.06 shall not apply to the Company acting as its own Paying Agent pursuant to Section 5.05(b).
29
7.07 Compensation of Trustee and Its Lien.
The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation (which shall be agreed to in writing from time to time by the Company and the Trustee and which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as herein otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its gross negligence or willful misconduct. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled (but shall not be required) to make advances from funds collected or held in trust by the Trustee as such for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Company also jointly and severally covenants and agrees to indemnify the Trustee, any predecessor Trustee or their agents for, and to hold them harmless against, any loss, liability, claim, damage or expense incurred without gross negligence or willful misconduct on their part as determined by a final order of a court of competent jurisdiction, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves 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 the Trustee’s powers or duties hereunder, or in connection with the enforcement of the provisions of this Section 7.07, except to the extent that such loss, liability, claim, damage or expense is due to their own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction; provided, however, that the Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Trustee shall notify the Company promptly of any claim for which it may seek indemnification. The obligations of the Company under this Section 7.07 shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(E) or Section 6.01(F), 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 bankruptcy, insolvency, reorganization or other similar law.
The provisions of this Section 7.07 shall survive the resignation or removal of the Trustee and the discharge or termination of this Indenture.
7.08 Right of Trustee to Rely on Certificate of Certain Officers.
Except as otherwise provided in Section 315 of the Trust Indenture Act, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect hereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
7.09 Persons Eligible for Appointment As Trustee.
There shall at all times be a Trustee hereunder that is an entity organized and doing business under the laws of the United States, any state thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or state authority. If such entity publishes reports of condition at least annually, pursuant to law or to the requirements of a supervising or examining authority, then for the purposes of this Section 7.09, the combined capital and surplus of such entity shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with this Section 7.09 or the Trust Indenture Act, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10. Neither the Company nor any Affiliate of the Company shall serve as Trustee for the Securities of any series issued hereunder. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, 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 or any other indenture of the Company.
30
7.10 Resignation and Removal of Trustee; Appointment of Successor.
(a) The Trustee, or any Trustee or Trustees hereafter appointed, may at any time resign with respect to any one or more or all series of Securities by giving 60 days prior written notice to the Company and by giving notice of such resignation to the Holders of Securities in the manner provided in Section 1.05. Upon receiving such notice of resignation, the Company shall use its commercially reasonable efforts to promptly appoint a successor Trustee or Trustees with respect to the applicable series by written instrument executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor Trustee. If no successor Trustee shall have been so appointed with respect to a particular series and have accepted appointment within 60 days after the sending 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, or any Holder who has been a bona fide Holder of a Security or Securities of the applicable series for at least 6 months may, on behalf of such Holder and all others similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(A) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(B) the Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company upon 30 days prior written notice may remove the Trustee with respect to the applicable series of Securities and appoint a successor Trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or any Holder who has been a bona fide Holder of a Security or Securities of any such series for at least 6 months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee with respect to such series.
(c) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may at any time upon 60 days prior written notice remove the Trustee with respect to that series and appoint with respect to such series a successor Trustee by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Company, the evidence provided for in Section 9.01 of the action taken by the Holders, unless within 10 days after notice to the Company of such nomination, the Company objects thereto, in which case, the Trustee so removed or any Holder who has been a bona fide Holder of a Security or Securities of the applicable series for at least 6 months may, on behalf of such Holder and all others similarly situated, and at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and any appointment of a successor Trustee pursuant to this Section 7.10 shall become effective only upon acceptance of appointment by the successor Trustee as provided in Section 7.11.
31
7.11 Acceptance of Appointment by Successor Trustee.
Any successor Trustee appointed under Section 7.10 shall execute, acknowledge and deliver to the Company and to the predecessor Trustee with respect to any and all applicable series an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed, or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations with respect of such series of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any such amounts then due it pursuant to the provisions of Section 7.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts with respect to such series of the Trustee so ceasing to act. Upon the reasonable request of any such successor Trustee, the Company shall execute any and all instruments in writing more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to Section 7.07.
In the 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 predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall accept appointment as provided in this Section unless at the time of such acceptance such successor Trustee shall with respect to such series be eligible under Section 7.09.
Upon acceptance of appointment by a successor Trustee with respect to the Securities of any series, the Company shall give notice of the succession of such Trustee hereunder to the Holders of Securities in the manner provided in Section 1.05. If the Company fails to give such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Company.
7.12 Merger, Conversion or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such successor Trustee shall be eligible under the provisions of Section 7.09 hereof and Section 310(a) of the Trust Indenture Act.
32
7.13 Authenticating Agents.
There may be an Authenticating Agent or Authenticating Agents with respect to one or more series of Securities appointed by the Trustee from time to time with power to act on its behalf and subject to its direction in connection with the authentication and delivery of Securities of such series issued upon exchange, transfer or redemption thereof as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized to authenticate and deliver Securities, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as though authenticated by the Trustee hereunder. For all purposes of this Indenture (except in the case of original issuance of Securities and the issuance of Securities in replacement of lost, stolen, mutilated or destroyed Securities), the authentication and delivery of Securities by an Authenticating Agent appointed pursuant to the provisions of this Section 7.13 shall be deemed to be the authentication and delivery of such Securities “by the Trustee,” and whenever this Indenture provides (except in the case of original issuance of the Securities and the issuance of Securities in replacement of lost, stolen, mutilated or destroyed Securities) that “the Trustee shall authenticate and deliver” Securities, such authentication and delivery by any Authenticating Agent shall be deemed to be authentication and delivery by the Trustee. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or any State or the District of Columbia, with a combined capital and surplus of at least $50,000,000 and authorized under such laws to act as an authenticating agent, duly registered to act as such, if and to the extent required by applicable law and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of its condition at least annually, pursuant to law or the requirements of such authority, then for the purposes of this Section 7.13 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible to act as such in accordance with the provisions of this Section 7.13, it shall resign immediately in the manner and with the effect herein specified in this Section 7.13.
Any entity into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any entity succeeding to all or substantially all the corporate agency business of any Authenticating Agent, shall be the successor of the Authenticating Agent hereunder, if such successor entity is otherwise eligible to act as such in accordance with the provisions of this Section 7.13, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent or such successor entity.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice or resignation or upon a termination, or in case at any time any Authenticating Agent shall cease to be eligible to act as such in accordance with the provisions of this Section 7.13, the Trustee may appoint a successor authenticating agent. Upon the appointment, at any time after the original issuance of any of the Securities, of any successor, additional or new authenticating agent, the Trustee shall give written notice of such appointment to the Company and shall at the expense of the Company give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner provided in Section 1.05. Any successor authenticating agent upon acceptance of its appointment pursuant to the provisions of this Section 7.13 shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if initially appointed as an Authenticating Agent. No successor authenticating agent shall be appointed unless eligible to act as such in accordance with the provisions of this Section 7.13.
Any Authenticating Agent by the acceptance of its appointment shall be deemed to have represented to the Trustee that it is eligible for appointment as Authenticating Agent under this Section 7.13 and to have agreed with the Trustee that:
33
(A) it will perform and carry out the duties of an Authenticating Agent as herein set forth, including, among other things, the duties to authenticate and deliver Securities when presented to it in connection with exchanges, registrations of transfer or redemptions thereof;
(B) it will keep and maintain, and furnish to the Trustee from time to time as requested by the Trustee, appropriate records of all transactions carried out by it as Authenticating Agent and will furnish the Trustee such other information and reports as the Trustee may reasonably require; and
(C) it will notify the Trustee promptly if it shall cease to be eligible to act as Authenticating Agent in accordance with the provisions of this Section 7.13.
Any Authenticating Agent, by the acceptance of its appointment, shall be deemed to have agreed with the Trustee to indemnify the Trustee against any loss, liability or expense incurred by the Trustee and to defend any claim asserted against the Trustee by reason of any acts or failures to act of such Authenticating Agent, but such Authenticating Agent shall have no liability for any action taken by it in accordance with the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation and expenses for its services.
The provisions of Sections 7.04, 7.05 and 7.08 shall inure to the benefit of each Authenticating Agent to the same extent that they inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant to this Section 7.13, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated therein issued under the within-mentioned Indenture.
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
| By [FULL LEGAL NAME OF AUTHENTICATING | ||
| AGENT], as Authenticating Agent | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
7.14 Preferential Collection of Claims.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to Section 311 of the Trust Indenture Act regarding the collection of claims against the Company (or any other obligor upon the Securities) excluding any creditor relationship listed in Trust Indenture Act Section 311(b).
34
VIII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
8.01 Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or cause to be furnished to the Trustee:
(1) semi-annually with respect to Securities of each series not later than June 15 and December 15 of each year or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
8.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities, by receiving and holding the same, agrees that neither the Company, the Trustee, any Paying Agent or any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing or sending any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
8.03 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. After Securities are issued hereunder, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each anniversary of the date of this Indenture transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such date with respect to any of the events specified in said Sections 313(a) and 313(b)(2) of the Trust Indenture Act which may have occurred since the later of the immediately preceding anniversary and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section 8.03 shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act.
8.04 Reports by the Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall: (1) file with the Trustee, within 15 days after the Company files the same with the Commission, copies of the annual reports and 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 Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee, such of the supplementary and periodic information, documents and reports, if any, as may be prescribed by the Commission pursuant to the Trust Indenture Act at such time, in each case within 15 days after it files the same with the Commission; (2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company, with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (3) transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to clauses (1) and (2) of this Section 8.04 as may be required by rules and regulations prescribed from time to time by the Commission.
35
In the event that any direct or indirect parent company of the Company is or becomes a guarantor of the Securities, the Company may satisfy the requirements of this Section 8.04 with respect to financial information relating to the Company by furnishing financial information relating to such direct or indirect parent company as provided in Section 3-10 of Regulation S-X under the Exchange Act.
Any such information, documents or reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system, or any successor system established by the Commission, that are publicly available shall be deemed to be filed with the Trustee. The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred. Delivery of such information, documents or reports to the Trustee pursuant to any of the provisions of this Section 8.04 is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
IX CONCERNING THE HOLDERS
9.01 Evidence of Action Taken by Holders.
Whenever in this Indenture it is provided that the Holders of a specified percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing.
Members of, or participants in, a Depositary shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Depositary Custodian or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its agent members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
9.02 Proof of Execution of Instruments and of Holding of Securities.
Subject to the provisions of Section 7.03 and Section 315 of the Trust Indenture Act, proof of the execution of any instrument by a Holder or its agent or proxy and proof of the holding by any person of any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such Person of any instrument may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of deeds to be recorded in any State within the United States, that the Person executing such instrument acknowledged to such notary or other officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s authority. The fact and date of the execution of any such instrument may also be proved in any other manner which the Trustee may deem sufficient.
The ownership of Securities may be proved by the Security Register or by a certificate of the Security Registrar.
If the Company shall solicit from the Holders of Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the discretion of the Company. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be the Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Securities of such series outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities of such series outstanding shall be computed as of such record date.
36
Whenever any act is to be taken hereunder by the Holders of two or more series of Securities denominated in different currencies or currency units, then, for the purpose of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency (or any currency units) shall be deemed to be that amount of Dollars that could be obtained for such principal amount on the basis of the spot rate of exchange for such Foreign Currency or such currency unit as determined by the Company or by an authorized Exchange Rate Agent and evidenced to the Trustee by an Officer’s Certificate, as of the date the taking of such act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to the Trustee. An “Exchange Rate Agent” may be appointed in advance or from time to time by the Company. Any such determination by the Company or by any such Exchange Rate Agent shall be conclusive and binding on all Holders, the Company and the Trustee, and neither the Company nor any such Exchange Rate Agent shall be liable therefor in the absence of bad faith.
The Trustee may require such additional proof, if any, of any matter referred to in this Section 9.02 as it shall deem necessary.
9.03 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities or of any series of Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown, by evidence, to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange therefor or in place thereof. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
X SUPPLEMENTAL INDENTURES
10.01 Supplemental Indentures Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall, but only to the extent applicable, conform to the provisions of the Trust Indenture Act as it shall be in force at the date of execution of such supplemental indenture or indentures) for one or more of the following purposes:
(A) to secure the Securities of any series or to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities any property or assets which the Company may desire;
(B) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company, pursuant to Article XI;
(C) to add to the covenants and agreements of the Company such further covenants, agreements, restrictions or conditions for the protection of the Holders of the Securities of all or any series as its Board of Directors shall consider to be for the protection of the Holders of Securities of such series (and if such covenants, agreements, restrictions or conditions are to be for the benefit of less than all series of Securities, specifying the series to which such covenants, agreements, restrictions or conditions are applicable), and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, agreements, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that, in respect of any such additional covenant, agreement, restriction or condition, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of a particular series to waive such default;
37
(D) to add, delete or modify any Events of Default with respect to all or any series of the Securities, the form and terms of which are being established pursuant to such supplemental indenture as permitted in Sections 2.01, 3.01 and 3.03 (and, if any such Event of Default is applicable to fewer than all such series of the Securities, specifying the series to which such Event of Default is applicable) and to specify the rights and remedies of the Trustee and the Holders of such Securities in connection therewith;
(E) to prohibit the authentication and delivery of additional series of Securities;
(F) to cure any ambiguity, omission, mistake, defect or inconsistency;
(G) to make such other provisions in regard to matters or questions arising under this Indenture as shall not be inconsistent with the provisions of this Indenture or any supplemental indenture and shall not adversely affect the interests of the holders of the Securities in any material respect;
(H) to establish the form and terms of the Securities of any series as permitted in Sections 2.01, 3.01 and 3.03, or to authorize the issuance of additional Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions, limitations or restrictions thereafter to be observed;
(I) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.11;
(J) to provide for or add guarantors with respect to the Securities of any series;
(K) to provide for uncertificated Securities of any series in addition to or in place of certificated Securities of such series;
(L) to make any change that would provide any additional rights or benefits to the Holders of the Securities of any series;
(M) to maintain the qualification of this Indenture under the Trust Indenture Act; or
(N) to conform any provision of this Indenture or the Securities of any series to the description of such Securities in any prospectus supplement, offering memorandum, offering circular or other offering document relating to the Securities of such series.
Upon request of the Company, accompanied by a Board Resolution and the documents required by Section 10.05, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage, or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. In addition, the Trustee shall not be obligated to enter into any supplemental indenture which provides for the issuance of Securities of any series denominated in a Foreign Currency or currency unit, if the Trustee determines in its reasonable discretion that it would not be able to properly fulfill its obligations hereunder and thereunder in respect of such Securities or to do so would be unduly burdensome to the Trustee.
Any supplemental indenture authorized by the provisions of this Section 10.01 shall be executed by the Company and the Trustee and shall not require the consent of the Holders of any of the Securities at the time outstanding, notwithstanding Section 10.02.
38
10.02 Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Section 9.01) of the Holders of not less than a majority of the aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (all such series voting together as a single class), the Company, when authorized by or pursuant to a resolution of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall, but only to the extent applicable, conform to the provisions of the Trust Indenture Act as shall be in force at the date of execution of such supplemental indenture or indentures) for the purpose, with respect to Securities of such series, of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture with respect to Securities of such series or of modifying in any manner the rights of the Holders of the Securities of such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Security so affected:
(1) change the Stated Maturity of the principal of, or premium, if any, or any installment of interest, if any, on any Security, or reduce the principal amount thereof or the premium, if any, thereon or the rate (or modify the calculation of such rate) of interest thereon, or reduce the amount payable upon, or alter or waive the provisions relating to, redemption thereof at the option of the Company or mandatory repurchase or repayment thereof at the option of the Holder, or reduce the amount of the principal of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02 or the amount thereof provable in bankruptcy pursuant to Section 6.03, or adversely affect any right of repayment at the option of any Holder with respect to any Security, or change the Place of Payment to a location outside of the contiguous United States (unless set forth in the prospectus supplement or other offering document relating to such Security), or change the currency in which the principal of, any premium or interest on, any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the date for repayment) in each case as such Stated Maturity, Redemption Date or date for repayment may, if applicable, be extended in accordance with the terms of such Security, or, in the case of any Security which is convertible into or exchangeable for other securities, impair the right to institute suit to enforce the right to convert or exchange such Security in accordance with its terms;
(2) 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 Section 5.03 or Section 6.07 of this Indenture;
(3) modify any of the provisions of this Section 10.02 or Section 5.03 or Section 6.07, 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;
(4) make any change that adversely affects the right, if any, to convert or exchange any Security for common stock or other securities in accordance with its terms;
(5) waive a default in the payment of the principal of, premium, if any, or interest, if any, on any Security; or
(6) adversely affect the ranking of the Securities of any series.
Upon the written request of the Company, accompanied by a copy of the Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid and the documents required by Section 10.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
39
A supplemental indenture which changes or eliminates any provision of this Indenture or of any series of Securities which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series with respect to such provisions, 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 the consent of the Holders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture under this Section 10.02, the Company shall give notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of Securities in the manner provided in Section 1.05. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
10.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article X, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
10.04 Notation on Securities in Respect of Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article X may, and if required by the Trustee shall, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company and the Trustee, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding.
10.05 Opinion of Counsel and Officer’s Certificate to Be Given to Trustee.
The Trustee, subject to Section 7.03 and, to the extent applicable, Section 315 of the Trust Indenture Act, shall receive an Opinion of Counsel and an Officer’s Certificate stating that (i) any such supplemental indenture is authorized or permitted by the terms of this Indenture, (ii) solely with respect to the Opinion of Counsel, any such supplemental indenture is the legal, valid and binding obligation of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (iii) it is proper for the Trustee under the provisions of this Article X to join in the execution thereof.
40
XI CONSOLIDATION, MERGER AND SALE
11.01 Company May Consolidate or Merge, Etc.
Subject to the provisions of Section 11.02, nothing contained in this Indenture shall prevent any consolidation of the Company with or the merger of the Company into any other Person, or any merger of any other Person into the Company or successive consolidations or mergers to which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, transfer or lease of all or substantially all of the assets of the Company to any other Person lawfully entitled to acquire the same.
11.02 Conditions to Consolidation or Merger, Etc.
(A) The Company shall not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person or Persons in a single transaction or through a series of transactions, unless (i) the Company shall be the continuing Person or, if the Company is not the continuing Person, the resulting, surviving or transferee Person (the “Surviving Entity”) is organized and existing under the laws of the United States, Canada, Switzerland, the United Kingdom, any member state of the European Union or the Company’s jurisdiction of organization, or any state, province or political subdivision thereof, or the District of Columbia; provided that if the Surviving Entity is organized outside the United States, the supplemental indenture referred to in clause (ii) shall include a customary “additional amounts” provision; (ii) the Surviving Entity, if other than the Company, shall expressly assume all of the Company’s obligations under the Securities and this Indenture and, if required by law to effectuate such assumption, shall execute a supplemental indenture, which shall be delivered to the Trustee; (iii) immediately after giving effect to such transaction or series of transactions on a pro forma basis, no default or Event of Default shall have occurred and be continuing; and (iv) the Company or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and such supplemental indenture, if any, comply with this Article XI and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The restrictions in clauses (iii) and (iv) of this Section 11.02(A) shall not be applicable to (x) the merger or consolidation of the Company with an Affiliate of the Company if the Board of Directors determines in good faith that the purpose of such transaction is principally to change the Company’s state of incorporation or convert the Company’s form of organization to another form or (y) the merger of the Company with or into a single direct or indirect wholly-owned subsidiary of the Company pursuant to Section 251(g) (or any successor provision) of the General Corporation Law of the State of Delaware (or similar provision of the Company’s state of incorporation).
(B) Every such successor Person, upon executing such indenture supplemental hereto, shall succeed to (and, except in the case of a lease, be substituted for) the Company, as the case may be, with the same effect as if it had been an original party hereto (which succession shall, except in the case of a lease, relieve the Company of all liabilities hereunder), and such successor Person shall possess and from time to time may exercise each and every power hereunder of the Company and may execute and deliver Securities hereunder, either in the name of the Company or of such successor Person, and any act or proceeding required by this Indenture to be done or performed by any board or officer of the Company may be done or performed with like force and effect by the like board or officer of such successor Person.
11.03 Documents and Opinion to Be Furnished to the Trustee.
The Company covenants and agrees that if it shall consolidate with or merge into any other Person or if it shall sell, transfer or lease all or substantially all of its properties and assets, it will promptly furnish to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that its covenants contained in Section 11.02 have been complied with.
41
XII
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
12.01 Satisfaction and Discharge.
Unless pursuant to Section 3.01 this Section 12.01 is declared not applicable with respect to the Securities of any series, upon the direction of the Company by a written order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such written order, and the Trustee, on receipt of such written order, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture as to such series, when
(A) either
(i) all Securities of such series theretofore authenticated and delivered (other than (1) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (2) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.05) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to the Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity within one year, or
(3) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the currency in which such Securities are payable or Government Obligations (determined on the basis of the currency in which such Securities are then specified as payable at Stated Maturity) in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the maturity thereof, as the case may be;
(B) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and
(C) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series Outstanding 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 with respect to any series of Securities, the obligations of the Company to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (A) of this Section 12.01, the obligations of the Company and the Trustee with respect to the Securities of such series under Sections 3.05, 3.06, 5.02, 5.05, 12.03 and 12.06, any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Securities at the option of the Holders pursuant to Section 3.01 hereof, and any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to convert or exchange, and the obligation of the Company to convert or exchange, such Securities into common stock or other securities, shall survive; provided, however, that following the satisfaction and discharge of this Indenture with respect to any series of Securities whose Holders have the right to require the Company to repurchase or repay such Securities or to convert or exchange such Securities into common stock or other securities, the right of the Holder to require repurchase, repayment, conversion or exchange, as the case may be, of any such Security and the Company’s obligation to repurchase, repay, convert or exchange, as the case may be, any such Security shall (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) terminate immediately following the close of business on the final Stated Maturity of such Security or immediately following the close of business on any earlier Redemption Date of such Security (so long as the Company does not default in the payment of the Redemption Price plus accrued and unpaid interest, if any, due on such Redemption Date), as the case may be.
42
12.02 Defeasance and Covenant Defeasance.
(a) Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 12.02 or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 12.02 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 12.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of or within such series, elect to have Section 12.02(b) or Section 12.02(c) be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Section 12.02. Unless otherwise specified pursuant to Section 3.01 with respect to the Securities of any series, defeasance under clause (b) of this Section 12.02 and covenant defeasance under clause (c) of this Section 12.02 may be effected only with respect to all, and not less than all, of the Outstanding Securities of any series. To the extent that the terms of any Security established in or pursuant to this Indenture permit the Company or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on with respect to such Security is due and payable, then unless otherwise provided pursuant to Section 3.01, the right to extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.
(b) Upon the Company’s exercise of the option applicable to this Section 12.02(b) with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities, on the date the conditions set forth in clause (d) of this Section 12.02 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 12.02 and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely (except as provided in clause (ii) below) from the trust fund described in clause (d)(A) of this Section 12.02 and as more fully set forth in this Section 12.02 and Section 12.03, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Securities under Sections 3.05, 3.06, 5.02 and 5.05, with respect to any rights of Holders of such Securities (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Securities at the option of the Holders pursuant to Section 3.01 hereof, and with respect to any rights of Holders of such Securities (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into common stock or other securities, (iii) the rights, powers, trusts, duties, immunities and indemnities of the Trustee hereunder and the Company’s obligations with respect thereto and (iv) this Section 12.02 and Sections 12.03 and 12.06; provided, however, that following defeasance with respect to any series of Securities whose Holders have the right to require the Company to repurchase or repay such Securities or to convert or exchange such Securities into common stock or other securities, the right of the Holder to require repurchase, repayment, conversion or exchange, as the case may be, of any such Security and the Company’s obligation to repurchase, repay, convert or exchange, as the case may be, any such Security shall (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) terminate immediately following the close of business on the final Stated Maturity of such Security.
(c) Upon the Company’s exercise of the above option applicable to this Section 12.02(c) with respect to any Securities of or within a series, the Company shall be released from its obligations under any covenant applicable to such Securities to the extent specified pursuant to Section 3.01, which covenants shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (d) of this Section 12.02 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that with respect to such Outstanding Securities, the Company may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Sections 6.01(D), 6.01(G) or 6.01(H), as the case may be.
43
(d) The following shall be the conditions to application of clause (b) or (c) of this Section 12.02 to any Outstanding Securities of or within a series:
(A) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Section 12.02 applicable to it) as trust funds in trust for the purpose of making the following payments, dedicated solely to the benefit of the Holders of such Securities, (i) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (F) below, on the relevant Redemption Date, as the case may be, (ii) Government Obligations applicable to such Securities (determined on the basis of the currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (F) below, on the relevant Redemption Date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (iii) a combination thereof, in any case, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on the Stated Maturity of such principal or installment of principal or interest or the applicable Redemption Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(B) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowings) or any other material agreement or instrument to which the Company or any subsidiary of the Company is a party or by which it is bound.
(C) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit after giving effect thereto (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowings), and, solely in the case of defeasance under Section 12.02(b), no Event of Default with respect to such Securities under clause (E) or (F) of Section 6.01 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities under clause (E) or (F) of Section 6.01 shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to defeasance under Section 12.02(b) shall not be deemed satisfied until the expiration of such period).
(D) In the case of defeasance pursuant to Section 12.02(b), the Company shall have delivered to the Trustee an opinion of independent counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable United States Federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for United States Federal income tax purposes as a result of such defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 12.02(c), the Company shall have delivered to the Trustee an opinion of independent counsel to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(E) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
44
(F) If the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (A) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on and, to the extent provided in such clause (A) with respect to a particular Redemption Date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(G) Notwithstanding any other provisions of this Section 12.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.
(H) Such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all Securities of such series were in default within the meaning of such Act.
(I) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder.
(e) Subject to Section 12.05, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 12.02(e) and Section 12.03, the “Trustee”) pursuant to clause (d)(A) of Section 12.02 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 12.02(d)(A) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a currency other than that in which the deposit pursuant to Section 12.02(d)(A) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 12.02(d)(A) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and the Company shall indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 12.02 or the principal or 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 such Outstanding Securities.
Anything in this Section 12.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon written order any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d)(A) of this Section 12.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 12.02.
12.03 Application by Trustee of Funds Deposited for Payment of Securities.
All money deposited with the Trustee pursuant to Sections 12.01 and 12.02, or received by the Trustee in respect of obligations deposited with the Trustee pursuant to Section 12.01, or 12.02, shall be held in trust until such time as such money is to be applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities, for the payment of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for the principal thereof, premium, if any, and interest, if any, thereon. Moneys held under this Section 12.03 need not be segregated from other funds except to the extent required by law, and the Trustee shall be under no liability with respect to interest on any such moneys.
45
12.04 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent, other than the Trustee, under this Indenture shall, upon and in accordance with demand of the Company, be paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
12.05 Return of Unclaimed Moneys.
Subject to applicable escheatment laws, any moneys deposited with the Trustee or any Paying Agent not applied but remaining unclaimed by the Holders of Securities for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Securities shall have become due and payable shall be repaid to the Company by the Trustee or such agent on written demand; and the Holder of any of the Securities entitled to receive such payment shall thereafter look only to the Company for the payment thereof, and all liability of the Trustee or any Paying Agent with respect to such moneys shall thereupon cease.
12.06 Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to Section 12.02(d)(A)) or any Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section 12.01 or Section 12.02(d)(A) to pay any principal of or premium, if any, or interest, if any, on, with respect to the Securities of any series by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the principal of and premium, if any, and interest, if any, on the Securities of such series as contemplated by Section 12.01 or Section 12.02 as the case may be, and Section 12.03; provided, however, that if the Company makes any payment of the principal of or premium, if any, or interest, if any, on, in respect of the Securities of such series following the reinstatement of its obligations as aforesaid, the Company shall be subrogated to the rights of the Holders of such payment from the funds held by the Trustee (or other qualifying trustee) or Paying Agent.
XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
13.01 Personal Immunity from Liability of Incorporators, Stockholders, Etc.
No recourse under or upon any obligation, covenant or agreement of this Indenture or any indenture supplemental hereto, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability and any and all such claims being hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and issue of the Securities.
XIV SUBMISSION TO JURISDICTION
14.01 Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this Indenture, the Securities or the transactions contemplated by this Indenture or the Securities may be instituted in the federal courts of the United States of America located in The City of New York or the courts of the State of New York, in each case located in The City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 1.04 will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Trustee and each Holder (by its acceptance of any Security), to the extent permitted by applicable law, irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
46
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.
| ENVISTA HOLDINGS CORPORATION | |||
| By: | |||
| Name: | |||
| Title: | |||
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Indenture]
47
Exhibit 5.1
601 Lexington Avenue New York, NY 10022 United States
+1 212 446 4800
www.kirkland.com |
Facsimile: +1 212 446 4900 |
November 9, 2026
Envista Holdings Corporation
c/o Envista Holdings Corporation
200 S. Kraemer Blvd., Building E
Brea, California 92821
| Re: | Registration Statement on Form S-3ASR |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special legal counsel to Envista Holdings Corporation, a Delaware corporation (the “Company”), in connection with the proposed registration by the Company under the Securities Act of 1933, as amended (the “Act”), on a Registration Statement on Form S-3ASR, and the documents incorporated by refence therein, filed with the Securities and Exchange Commission (the “Commission”) on November 9, 2026 (as such registration statement is amended or supplemented, the “Registration Statement”) for the offer and sale from time to time pursuant to Rule 415 under the Act of (i) common stock, par value $0.01 per share (“Common Stock”); (ii) preferred stock, par value $0.01 (“Preferred Stock”), (iii) one or more series of debt securities; (iv) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”); (v) subscription rights to purchase Common Stock, Preferred Stock or other securities (“Rights”); and (vi) units consisting of two or more securities of the Company (“Units”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Rights, and Units (collectively, the “Securities”) may be issued by the Company either together or separately in connection with an offering or offerings from time to time pursuant to the Registration Statement and will be offered on terms set forth in the Registration Statement and in the prospectus contained in the Registration Statement (the “Prospectus”) and in amounts, at prices and on other terms to be determined by the Company at the time of offering and to be set forth in an amendment or amendments to the Registration Statement and the Prospectus and in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
 |
| Envista Holdings Corporation November 9, 2026 Page 2 |
You have advised us that (i) the Debt Securities will be issued under an Indenture (the “Indenture”), between the Company and the trustee named therein, (ii) the Warrants will be issued under a Warrant Agreement (the “Warrant Agreement”), between the Company and a warrant agent named therein, (iii) the Rights will be issued under a Subscription Rights Agreement (the “Rights Agreement”), between the Company and a rights agent named therein, and (iv) the Units will be issued under a Unit Purchase Agreement (the “Units Agreement”), between the Company and the other parties named therein. The Indenture, the Warrant Agreement, the Rights Agreement and the Units Agreement are referred to herein as “Governing Documents”. The Governing Documents will be executed and filed in an amendment to the Registration Statement (or incorporated by reference into the Registration Statement) prior to the offering of any Securities.
The Registration Statement provides that the Company may sell the Securities registered thereby (i) through underwriters or dealers, (ii) directly to one or more other purchasers, (iii) through agents or (iv) through a combination of any of these methods. The applicable Prospectus Supplement with respect to the Securities offered will set forth the terms of the offering of such Securities, including the name or names of any underwriters, dealers or agents, the purchase price of such Securities and the proceeds to the Company from such sale, any underwriting discounts and other items constituting underwriters’ compensation, any initial public offering price and any discounts, commissions or concessions allowed or reallowed or paid to dealers, and any bidding or auction process. If underwriters are used in an offering of Securities registered by the Registration Statement, the Registration Statement anticipates that the Company will sell such Securities pursuant to the terms of an underwriting agreement to be executed between the Company and underwriters that will be identified in the applicable Prospectus Supplement. We have assumed for purposes of this letter that the terms of the Underwriting Agreement will fall within the scope of the authorization adopted by the board of directors of the Company (“Board Authorization”) and will receive the approvals required by that Board Authorization. The term “Underwriting Agreement” is used in this letter to mean an underwriting agreement in the form in which it will be actually executed by the Company and the underwriters with respect to a particular underwritten offering of Securities registered by the Registration Statement.
In connection therewith, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purpose of this opinion, including (i) the corporate and organizational documents of the Company, (ii) minutes and records of the corporate proceedings of the Company with respect to the issuance and sale of the Securities and (iii) the Registration Statement and the exhibits thereto. The term “Transaction Documents” is used in this letter to refer collectively to the Underwriting Agreement, the Indenture and the Securities.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto (other than the Company), and the due authorization, execution and delivery of all documents by the parties thereto (other than the Company). We have assumed further that the Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware and has all legal right, power and authority to execute, deliver and perform its obligations under the Securities and the Governing Documents. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others.
| |
| Envista Holdings Corporation November 9, 2026 Page 3 |
We have also assumed that:
| (i) | the Registration Statement shall have become effective pursuant to the provisions of the Act and will remain effective and comply with all applicable laws at the time the Securities are offered or issued as contemplated the Registration Statement; |
| (ii) | a Prospectus Supplement or Prospectus Supplements with respect to the Securities shall have been filed (or transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act and any exhibits necessary under the rules and regulations of the Commission shall have been filed with the Commission in an amendment to the Registration Statement or incorporated by reference into the Registration Statement pursuant to a Current Report on Form 8-K of the Company filed with the Commission and will comply with all applicable laws; |
| (iii) | the Securities will be issued and sold in the manner stated in the Registration Statement, and in the form and containing the terms set forth in the Registration Statement, as applicable, and the Governing Documents; |
| (iv) | a definitive Underwriting Agreement will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; |
| (v) | the terms of the (a) Indenture, (b) Warrant Agreement, (c) Rights Agreement or (d) Units Agreement, each as applicable to the particular Securities, are consistent with the description of the terms of such agreement set forth in the Registration Statement and in the Prospectus Supplement or Prospectus Supplements; |
| (vi) | appropriate corporate action shall have been taken to authorize the issuance and sale of, and such authorization will not have been modified or rescinded; |
| (vii) | any Securities issuable upon conversion, exchange, or exercise of any Security being offered or issued will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise; |
| (viii) | the issuance, sale and delivery of the Securities, the terms of the Securities and compliance by the Company with the terms of the Securities will not violate any applicable law, any agreement or instrument then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company; |
| |
| Envista Holdings Corporation November 9, 2026 Page 4 |
| (ix) | any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities shall have been obtained; |
| (x) | there will not have occurred any change in law affecting the validity, legally binding character or enforceability of the Securities; and |
| (xi) | appropriate certificates representing the shares of Registered Common Stock will have been duly executed, countersigned by the Company’s transfer agent/registrar, registered and delivered against payment of the agreed consideration therefor in accordance with the applicable Agreement, as applicable. |
Based upon and subject to the assumptions, qualifications and limitations identified in this opinion, we are of the opinion that:
1. The Common Stock, when delivered and paid for in accordance with the Underwriting Agreement, will be validly issued, fully paid and nonassessable.
2. The Preferred Stock, when delivered and paid for in accordance with the Underwriting Agreement, will be validly issued, fully paid and nonassessable.
3. When the Debt Securities have been duly executed, delivered and paid for in accordance with the Underwriting Agreement, the Indenture has been duly authorized, executed and delivered by the Company and the Trustee, the Indenture has been qualified under the Trust Indenture Act of 1939, as amended and the Debt Securities have been fully authenticated by the Trustee, the Debt Securities will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4. When the Warrants have been duly executed, delivered and paid for in accordance with the Warrant Agreement, and the Warrant Agreement has been duly authorized, executed and delivered by the Company and warrant agent, the Warrants will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5. When the Rights have been delivered and paid for in accordance with the Rights Agreement, the Rights Agreement has been duly authorized, executed and delivered by the Company and the rights agent, the Common Stock issuable upon exercise of the Rights has been duly authorized and reserved for issuance by all necessary corporate or organizational action, the Rights will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
| |
| Envista Holdings Corporation November 9, 2026 Page 5 |
6. When the Units have been delivered and paid for in accordance with the Units Agreement, the Units Agreement has been duly authorized, executed and delivered by the Company and the other parties named therein, the Common Stock issuable upon exercise of the Units has been duly authorized and reserved for issuance by all necessary corporate or organizational action, and, in the case of any Debt Securities issuable thereunder, the terms of such Debt Securities have been duly authorized in accordance with the terms of the Indenture, applicable law and corporate action, the Units will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Each opinion in this letter that any particular contract constitutes a valid and binding agreement or is enforceable in accordance with its terms (each, an “enforceability opinion”) is subject to: (i) the effect of bankruptcy, insolvency, fraudulent conveyance and other similar laws and judicially developed doctrines in this area such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity; and (iii) other commonly recognized statutory and judicial constraints on enforceability including statutes of limitations. “General principles of equity” include but are not limited to: (A) principles limiting the availability of specific performance and injunctive relief; (B) principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; (C) principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; (D) principles which may permit a party to cure a material failure to perform its obligations; and (E) principles affording equitable defenses such as waiver, laches and estoppel. It is possible that terms in a particular contract covered by our enforceability opinion may not prove enforceable for reasons other than those explicitly cited in this letter should an actual enforcement action be brought, but (subject to all the exceptions, qualifications, exclusions and other limitations contained in this letter) such unenforceability would not in our opinion prevent the party entitled to enforce that contract from realizing the principal benefits purported to be provided to that party by the terms in that contract which are covered by our enforceability opinion. In addition, none of the opinions or other advice contained in this letter covers or otherwise addresses any of the following types of provisions (or the enforceability thereof) which may be contained in the Transaction Documents: (i) provisions mandating contribution towards judgments or settlements among various parties; (ii) waivers of benefits and rights to the extent they cannot be waived under applicable law; (iii) provisions providing for liquidated damages, late charges and prepayment charges, in each case if deemed to constitute penalties; (iv) provisions which might require indemnification or contribution in violation of general principles of equity or public policy, including, without limitation, indemnification or contribution obligations which arise out of the failure to comply with applicable state or federal securities laws, rules or regulations; or (v) requirements in the Transaction Documents specifying that provisions thereof may only be waived in writing (these provisions may not be valid, binding or enforceable to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying any provision of such documents).
| |
| Envista Holdings Corporation November 9, 2026 Page 6 |
Our advice on every legal issue addressed in this opinion is based exclusively on the internal law of the State of New York and the General Corporation Law of the State of Delaware.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance of the Securities.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. This opinion speaks only as of the date that the Registration Statement becomes effective under the Act, and we assume no obligation to revise or supplement this opinion should the present laws of the State of New York or the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise after the date hereof.
This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purposes.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this 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 or the Commission.
| Very truly yours, | |
/s/ Kirkland & Ellis LLP
| |
| KIRKLAND & ELLIS LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Envista Holdings Corporation for the registration of shares of its Common Stock, Preferred Stock, Debt Securities, Warrants, Stock Purchase Contracts and Stock Purchase Units and to the incorporation by reference therein of our reports dated February 12, 2026, with respect to the consolidated financial statements of Envista Holdings Corporation, and the effectiveness of internal control over financial reporting of Envista Holdings Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2025 and the financial statement schedule of Envista Holdings Corporation included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Irvine, California
November 9, 2026
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
| Delaware | 16-1486454 | |
| (Jurisdiction
of incorporation of organization if not a U.S. national bank) |
(I.R.S.
Employer Identification Number) |
1100 North Market Street
Wilmington, Delaware 19890-0001
(Address of principal executive offices)
Kyle Barry
Senior Vice President
Wilmington Trust Company
285 Delaware Ave.
Buffalo, NY 14202
(716) 839-6909
(Name, address, including zip code, and telephone number, including area code, of agent of service)
Envista Holdings Corporation
(Exact name of obligor as specified in its charter)
| Delaware | 83-2206728 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
| 200
S. Kraemer Blvd., Building E Brea, California |
92821 | |
| (Address of principal executive offices) | (Zip Code) | |
| Debt Securities | ||
| (Title of the indenture securities) | ||
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 3 – 15. Not Applicable.
ITEM 16. LIST OF EXHIBITS.
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis and State of Minnesota on the 9th day of November, 2026.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | ||
| By: | /s/ Karleen R. Bratland | |
| Name: | Karleen R. Bratland | |
| Title: | Assistant Vice President | |
3
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
4
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted at its main office and its branches.
THIRD. The board of directors of this association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws, or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
5
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director's removal.
6
FIFTH. The authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association's stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
7
SIXTH. The board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact the business of this association.
A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association's management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
8
EIGHTH. The corporate existence of this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
9
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ELEVENTH. These articles of association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount. The association's board of directors may propose one or more amendments to the articles of association for submission to the shareholders.
10
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
(Effective as of March 7, 2024)
11
AMENDED AND RESTATED BYLAWS OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of shareholders shall be held on such date and at such time as may be designated by the chair of the Board of Directors, the chief executive officer, the president, the chief operating officer, the secretary, or the Board of Directors for the purpose of the election of directors and for the transaction of such other business as may properly come before the meeting, except such date shall not be a legal holiday in Delaware. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to each shareholder at his or her address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the Board of Directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2. Special Meetings. The chair of the Board of Directors, the president, the chief executive officer, the secretary, or the Board of Directors may call a special meeting of the shareholders. A special meeting shall be called to act on any matter that may properly be considered at a meeting of shareholders upon the written request of shareholders entitled to cast not less than a majority of all the votes entitled to be cast on such matter at the meeting. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice stating the purpose of the meeting.
The Board of Directors may fix a record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
Section 3. Adjournment. If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
12
Section 4. Nominations of Directors. Nominations for election to the Board of Directors may be made by the Board of Directors or by any shareholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the association, not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chair of the meeting, and upon his/her instructions, all votes cast for each such nominee may be disregarded.
Section 5. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. A director or an attorney of the association may act as proxy for shareholders voting if they are not also employed as an officer of the association. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting shall be accepted.
Section 6. Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the articles of association. If a meeting for the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
13
ARTICLE II
Directors
Section 1. Board of Directors. The Board of Directors shall have the power to manage and administer the business and affairs of the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the Board of Directors.
Section 2. Number. The Board of Directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the association from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of a majority of the shareholders at any meeting thereof. The Board of Directors may not increase the number of directors between meetings of shareholders to a number which: (a) exceeds by more than 2 the number of directors last elected by shareholders where the number was 15 or less; or (b) exceeds by more than 4 the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the association from the 25-member limit.
Section 3. Qualifications. Each director must be a citizen of the United States and must own in his or her own right either shares of the capital stock of the association or a company that controls the association that has not less than an aggregate par value of $1,000, an aggregate shareholders’ equity of $1,000, or an aggregate fair market value of $1,000. The value of the common or preferred stock held by a director is valued as of the date purchased or the date on which the individual became a director, whichever is greater.
Section 4. Organization Meeting. After each annual meeting of shareholders at which directors shall have been elected, the Board of Directors shall meet as soon as practicable for the purpose of organization and the transaction of other business. Such first regular meeting shall be held at any place as may be designated by the chair, the president or the Board of Directors for such first regular meeting or, in default of such designation, where the immediately preceding meeting of shareholders was held.
Section 5. Regular Meetings. Regular meetings of the Board of Directors shall be held on such dates and at such places as may be designated from time to time by the chair. No notice of regular meetings shall be necessary.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called at any time by the chair, the chief executive officer, the president or by a majority of the then- acting directors by vote at a meeting or in writing, or by a majority of the members of the executive committee, if one is constituted, by vote at a meeting or in writing. A special meeting of the Board of Directors shall be held on such date and at any place as may be designated from time to time by the Board of Directors. In the absence of such designation, such meeting shall be held at such place as may be designated in the call. Each member of the Board of Directors shall be given notice stating the date, time and place, by letter, electronic delivery or in person, of each special meeting not less than one day before the meeting. Such notice need not specify the purpose for which the meeting is called, unless required by the Articles of Association or the bylaws.
14
Section 7. Quorum. A majority of the entire Board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these Bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 11. If a quorum is present, the board of directors may take action through the vote of a majority of the directors who are in attendance. No director may vote by proxy.
Section 8. Attendance by Electronic, Telephonic or Similar Means. Any one or more members of the Board of Directors or any committee thereof may participate in a regular or special meeting of such board or committee by, or conduct the meeting through the use of, conference telephone or other communications equipment by which all directors or committee members participating may simultaneously hear each other during the meeting. Participation in a meeting by these means constitutes presence in person at a meeting.
Section 9. Procedures. The order of business and all other matters of procedure at every meeting of the Board of Directors may be determined by the person presiding at the meeting.
Section 10. Removal of Directors. Any director may be removed for cause at any meeting of shareholders, notice of which shall have referred to the proposed action, by vote of the shareholders. Any director may be removed without cause at any meeting of shareholders, notice of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the association entitled to vote. Any director may be removed for cause at any meeting of the directors, notice of which shall have referred to the proposed action, by vote of a majority of the entire Board of Directors.
Section 11. Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the Board of Directors may appoint a director to fill such vacancy until the next election at any regular meeting of the Board of Directors, or at a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum of the Board of Directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that purpose in conformance with Section 2 of Article I. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
Section 12. Consent of Directors without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board. The action may be evidenced by one or more written consents signed by each director before or after such action, describing the action taken, and included in the minutes or filed with the corporate records. A director’s consent to action taken without a meeting may be in electronic form and delivered by electronic means.
15
Section 13. Ratification. The board of directors may ratify and make binding on the association any action or inaction by the association or its officers to the extent that the Board of Directors or the shareholders could have originally authorized the matter and as permitted by law. Moreover, any action or inaction questioned in any shareholders’ derivative proceeding or any other proceeding on the ground of lack of authority, defective or irregular execution, adverse interest of a director, officer or shareholder, non-disclosure, miscomputation, the application of improper principles or practices of accounting or otherwise, may be ratified, before or after judgment, by the Board of Directors or by the shareholders, and if so ratified, shall have the same force and effect as if the questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the shareholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned action or inaction.
ARTICLE III
Committees
Section 1. Executive Committee. The Board of Directors may appoint an Executive Committee, which shall have and may exercise, during the intervals between meetings of the Board of Directors, all the powers of the Board of Directors in the management of the business, properties and affairs of the association except as prohibited by law, the Articles of Association or these Bylaws. All acts done and powers conferred by the Executive Committee shall be deemed to be and may be certified as being, done or conferred under authority of the Board of Directors.
Section 2. Trust Audit Committee. Unless delegated pursuant to Section 5 of this Article III, there shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the Board of Directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable audits to be made by auditors responsible only to the Board, and at such time shall ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers of the association or an affiliate who participate significantly in the administration of the association’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee to which the Board of Directors has delegated power to manage and control the fiduciary activities of the bank.
Section 3. Examining Committee. Unless delegated pursuant to Section 5 of this Article III, there shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the association as shall be deemed advisable.
16
Section 4. Other Committees. The Board of Directors may from time to time by resolution adopted by affirmative vote of a majority of the Board of Directors, appoint other committees of the Board of Directors which shall have such powers and duties as the Board of Directors may properly determine. No such other committee of the Board of Directors shall be composed of fewer than three (3) directors. The Board of Directors may also appoint one or more directors as alternative members of a committee. All acts done and powers conferred by the Board of Directors on committees of the Board of Directors shall be deemed to be and may be certified as being, done or conferred under that authority of the Board of Directors.
Section 5. Delegation of Responsibility and Authority. The responsibility, authority and constitution of any committee under this Article III may, if authorized by law, be given over to a duly constituted committee of the association’s parent corporation by resolution adopted by the Board of Directors.
ARTICLE IV
Officers and Employees
Section 1 Officers. The Board of Directors shall annually, at the Annual Reorganization Meeting of the Board of Directors following the annual meeting of shareholders, appoint or elect a chair of the Board, a chief executive officer, a president, one (1) or more senior executive vice presidents, a corporate secretary, a treasurer, a chief auditor, and such other officers as it may determine, each to hold office until the next Annual Reorganization meeting.
The officers below the level of senior executive vice president may be elected as follows: the head of the Human Resources Department of M&T Bank, or his or her designee, may appoint officers up to and including (without limitation as to title or number) one (1) or more executive vice presidents, senior vice presidents, vice presidents, assistant vice presidents, assistant secretaries, assistant treasurers, and assistant auditors, and any other officer positions as they deem necessary and appropriate, except the chair of the board, chief executive officer, president, any “Executive Officer” of the association for the purposes of Regulation O (codified at 12 C.F.R. §215.2(e)(1)), and any “Senior Executive Officer” within the meaning of 12 C.F.R. §5.51(c)(4) may only be appointed by the Board of Directors.
Section 2. Chair of the Board. The Board of Directors shall appoint one of its members to be the chair of the Board to serve at its pleasure. Such person shall preside at all meetings of the Board of Directors. The chair of the Board shall supervise the carrying out of the policies adopted or approved by the Board of Directors; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the Board of Directors.
17
Section 3. President. The Board of Directors shall appoint one of its members to be the president of the association. The president shall be a member of the Board of Directors. In the absence of the chair, the president shall preside at any meeting of the Board of Directors. The president shall have general executive powers and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president, or imposed by these Bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the Board of Directors.
Section 4. Vice President. The Board of Directors may appoint one or more vice presidents. Each vice president shall have such powers and duties as may be assigned by the Board of Directors. One vice president shall be designated by the Board of Directors, in the absence of the president, to perform all the duties of the president.
Section 5. Secretary. The Board of Directors shall appoint a secretary or other designated officer who shall be secretary of the Board of Directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these Bylaws; shall be custodian of the corporate seal, records, documents and papers of the association; shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the Board of Directors.
Section 6. Other Officers. The Board of Directors may appoint one or more assistant vice presidents, one or more trust officers, one or more officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time to time may appear to the Board of Directors to be required or desirable to transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by the Board of Directors, the chair of the Board, or the president. The Board of Directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7. Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless the notice specifies a later effective date.
ARTICLE V
Stock and Stock Certificates
Section 1. Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder's shares, succeed to all rights of the prior holder of such shares. The Board of Directors may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect it against fraudulent transfers.
18
Section 2. Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually, by facsimile process, or electronic means by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the Board of Directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed and otherwise comply with the requirements of 12 U.S.C. 52 and 12 C.F.R. §7.2016(b).
Section 3. Lost, Stolen or Destroyed Certificates. In case any certificate representing shares shall be lost, stolen or destroyed, the Board of Directors, in its discretion, or any officer or officers thereunder duly authorized by the Board of Directors, may authorize the issue of a substitute certificate or substitute shares in uncertificated form in the place of the certificate so lost, stolen or destroyed.
Section 4. Fixing of Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or determining shareholders entitled to receive payment of any dividend or the allotment of any other rights, in order to make a determination of shareholders for any other proper purpose. Such date, in any case, shall be the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 10 days before the meeting.
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in such form as may be determined from time to time by the Board of Directors. The president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the Board of Directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by any officer elected or appointed pursuant to Article IV of these Bylaws. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the Board of Directors may from time to time direct. The provisions of this Section 2 are supplementary to any other provision of these Bylaws.
19
Section 3. Records. The Articles of Association, the Bylaws and the proceedings of all meetings of the shareholders, the Board of Directors, and standing committees of the Board of Directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the Board of Directors.
20
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the association in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given under the Articles of Association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these Bylaws and (b) approval by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by shareholders. To the extent permitted by law, the Board of Directors or, if applicable, the shareholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the Board of Directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the Board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the Board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the Board of Directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the Board of Directors are named as respondents in an administrative proceeding or civil action and request indemnification, the Board shall authorize independent legal counsel to review the indemnification request and provide the Board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions have been met, the Board of Directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in the Articles of Association (a) shall be available with respect to events occurring prior to the adoption of these Bylaws, (b) shall continue to exist after any restrictive amendment of these Bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
21
The rights of indemnification and to the advancement of expenses provided in these Bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s Articles of Association, these Bylaws, a resolution of shareholders, a resolution of the Board of Directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these Bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its Board of Directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these Bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The Board of Directors shall have the power, at any regular or special meeting thereof, to amend, alter or repeal the bylaws of the association, or to make and adopt new bylaws. These Bylaws may be amended, altered or repealed and new bylaws may be adopted by the shareholders of the association to the extent and as permitted in the Articles of Association or applicable law.
22
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | ||
| Dated: November 9, 2026 | By: | /s/ Karleen R. Bratland |
| Name: | Karleen R. Bratland | |
| Title: | Assistant Vice President | |
23
R E P O R T O F C O N D I T I O N
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on June 30, 2026
| Thousands of Dollars | ||||
| ASSETS | ||||
| Cash and balances due from depository institutions: | 647,566 | |||
| Securities: | 1,097 | |||
| Federal funds sold and securities purchased under agreement to resell: | 0 | |||
| Loans and leases held for sale: | 0 | |||
| Loans and leases net of unearned income, allowance: | 23,405 | |||
| Premises and fixed asset | 23,151 | |||
| Other real estate owned: | 0 | |||
| Investments in unconsolidated subsidiaries and associated companies: | 0 | |||
| Direct and indirect investments in real estate ventures: | 0 | |||
| Intangible assets: | 0 | |||
| Other assets: | 76,857 | |||
| Total Assets: | 772,076 | |||
| LIABILITIES | Thousands of Dollars | |||
| Deposits | 4,936 | |||
| Federal funds purchased and securities sold under agreements to repurchase | 0 | |||
| Other borrowed money: | 0 | |||
| Other Liabilities: | 85,934 | |||
| Total Liabilities | 90,870 | |||
| EQUITY CAPITAL | Thousands of Dollars | |||
| Common Stock | 1,000 | |||
| Surplus | 364,355 | |||
| Retained Earnings | 315,854 | |||
| Accumulated other comprehensive income | (3 | ) | ||
| Total Equity Capital | 681,206 | |||
| Total Liabilities and Equity Capital | 772,076 | |||
24