As filed with the Securities and Exchange Commission on November 7, 2023
Registration No. 333-
Polaris Inc S-3ASR, filed Nov 7, 2023
Polaris Inc. (PII)
S-3ASR
2023-11-07
View Original
Added on
October 26, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POLARIS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | | | 41-1790959 |
(State or Other Jurisdiction of Incorporation or Organization) | | | (I.R.S. Employer Identification Number) |
2100 Highway 55
Medina, Minnesota 55340
Telephone: (763) 542-0500
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Lucy Clark Dougherty
SVP - General Counsel and Secretary
Polaris Inc.
2100 Highway 55
Medina, Minnesota 55340
Telephone: (763) 542-0500
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4000
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, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | | Emerging growth company | | | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Polaris Inc.
Debt Securities
Polaris Inc. (“Polaris”) may, from time to time, offer and sell debt securities in one or more series. This prospectus provides you with a general description of the debt securities we may offer. Each time we sell debt securities, we will provide a prospectus supplement that will contain the specific terms of the debt securities offered. The prospectus supplements will also describe the specific manner in which we will offer the debt securities. The prospectus supplements may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement, as well as the documents incorporated by reference in this prospectus and the applicable prospectus supplement, carefully before you invest.
The debt securities may be offered and sold to or through underwriters, brokers, dealers or agents as designated from time to time, or directly to one or more other purchasers or through a combination of such methods. See “Plan of Distribution.” If any underwriters, dealers or agents are involved in the sale of any of the debt securities, their names, and any applicable purchase price, fee, commission, discount or other compensation arrangements between or among them, will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
This prospectus may not be used to offer and sell debt securities unless accompanied by a prospectus supplement.
Investing in our debt securities involves risks. You should carefully consider the risk factors referred to on page 2 of this prospectus, in any applicable prospectus supplement and in the documents incorporated or deemed incorporated by reference in this prospectus and the applicable prospectus supplement before you invest in our debt securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 7, 2023.
TABLE OF CONTENTS
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | | ||
| | |
We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus, any prospectus supplement or in any free writing prospectus filed by us with the U.S. Securities and Exchange Commission (the “SEC”). We do not take any responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell the debt securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained in this prospectus, any prospectus supplement and any free writing prospectus or any document incorporated by reference is accurate as of any date other than the respective dates on the front of such documents. Our business, properties, financial condition, results of operations and prospects may have changed since those dates.
This prospectus does not constitute an offer to sell, or an invitation on our behalf, to subscribe to or purchase any of the debt securities, and may not be used for or in connection with an offer or solicitation by anyone, in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such an offer or solicitation.
i
This prospectus is part of a registration statement that we filed with the SEC under a “shelf” registration process. Under this shelf registration process, we may, at any time and from time to time, sell in one or more offerings the debt securities described in this prospectus. This prospectus provides you with a general description of the debt securities we may offer. Each time we sell debt securities, we will provide a prospectus supplement containing specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus, and accordingly, to the extent inconsistent, information in this prospectus is superseded by the information in the prospectus supplement. You should carefully read both this prospectus and any applicable prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
The prospectus supplement will describe: the terms of the debt securities offered, the price to the public, the price paid to us for the debt securities, the net proceeds to us, the manner of distribution, any underwriting compensation and the other specific material terms related to the offering of those debt securities. For more detail on the terms of the debt securities, you should read the exhibits filed with or incorporated by reference in our registration statement of which this prospectus forms a part.
Unless expressly indicated or the context otherwise requires, the terms “Company,” “we,” “us,” and “our” in this prospectus refer to Polaris and its consolidated subsidiaries. References to “debt securities” include any security that we might sell under this prospectus or any prospectus supplement. References to “$” and “dollars” are to United States dollars.
This prospectus contains summaries of certain provisions contained in key documents described in this prospectus. All of the summaries are qualified in their entirety by the actual documents, which you should review before making your investment decision. Copies of the documents referred to herein have been filed, or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.”
Because Polaris is a “well-known seasoned issuer,” as defined in Rule 405 of the Securities Act of 1933, as amended (the “Securities Act”), we may add to and offer additional debt securities by filing a prospectus supplement with the SEC at the time of the offer.
We are required to file annual, quarterly and current reports, proxy statements and other information with the SEC. Our filings are available to the public on the Internet, through a database maintained by the SEC at http://www.sec.gov. Our filings are also available, free of charge, on our website at https://ir.polaris.com/home. We have included our website address for the information of prospective investors and do not intend it to be an active link to our website. Information contained on our website does not constitute a part of this prospectus or any applicable prospectus supplement (or any document incorporated by reference herein or therein).
Polaris filed a registration statement on Form S-3 to register with the SEC the debt securities described in this prospectus. This prospectus is part of that registration statement. As permitted by SEC rules, this prospectus does not contain all the information contained in the registration statement or the exhibits to the registration statement. You may refer to the registration statement and accompanying exhibits for more information about us and our debt securities. You may review and obtain a copy of the registration statement and the exhibits that are a part of the registration statement through the SEC’s website or our website. You can also call or write us for a copy as described below.
The SEC allows us to incorporate by reference into this document the information we file with the SEC. This means that we can disclose important information to you by referring you to other documents that we identify as part of this prospectus. The information incorporated by reference is considered to be part of this prospectus. Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus.
ii
We incorporate by reference the documents listed below:
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on February 17, 2023 (the “Annual Report”); |
• | our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2023, filed on April 25, 2023, for the quarterly period ended June 30, 2023, filed on July 25, 2023, and for the quarterly period ended September 30, 2023, filed on October 24, 2023; |
• | our Definitive Proxy Statement on Schedule 14A filed on March 15, 2023 (solely to the extent incorporated by reference into our Annual Report); and |
• | our Current Reports on Form 8-K filed on May 1, 2023, July 28, 2023, October 26, 2023, and November 7, 2023. |
We also incorporate by reference any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than documents or information deemed to have been furnished and not filed in accordance with SEC rules, including Items 2.02 and 7.01 of Form 8-K), on or after the date of this prospectus until we have terminated the offering. Those documents will become a part of this prospectus from the date that the documents are filed with the SEC. Information that becomes a part of this prospectus after the date of this prospectus will automatically update and may replace information in this prospectus and information previously filed with the SEC. Any statement so updated or replaced will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Notwithstanding the foregoing paragraphs, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference in this prospectus.
We will provide to each person to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such documents, upon written or oral request and at no cost to the requester. Requests should be made by writing or telephoning us at the following address:
Polaris Inc.
2100 Highway 55
Medina, Minnesota 55340
Telephone: 763-542-0500
Attention: Investor Relations
iii
This prospectus, any accompanying prospectus supplement, any free writing prospectus and the documents incorporated by reference herein and therein contain “forward-looking statements” made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These “forward-looking statements” can generally be identified in this prospectus, any accompanying prospectus supplement, any free writing prospectus and the documents incorporated by reference herein and therein because the context of the statement will include words such as “believes,” “should,” “anticipates,” “expects,” “estimates” or words of similar import. Similarly, statements that describe our future plans or trends, objectives or goals, such as future sales, shipments, inventory levels, consumer demand, net income, net income per share, future cash flows and capital requirements, operational initiatives, pricing actions, tariffs, currency fluctuations, interest rates, and commodity costs, are also forward-looking statements that involve certain risks and uncertainties that could cause actual results to differ materially from those forward-looking statements.
Potential risks and uncertainties include such factors as the severity and duration of the supply-chain related constraints currently impacting us; our ability to successfully source necessary parts and materials on a timely basis; our ability to manufacture and deliver products to dealers to meet demand; our ability to identify and meet optimal dealer inventory levels; our ability to accurately forecast and sustain consumer demand; our ability to mitigate increasing input costs through pricing or other measures; global pandemics and the resulting impact on our business, supply chain, and the global economy; our ability to successfully implement its manufacturing operations strategy and supply chain initiatives; product offerings, promotional activities and pricing strategies by competitors that make our products less attractive to consumers; our ability to strategically invest in innovation and new products, including as compared to our competitors; economic conditions that impact consumer spending or consumer credit including recessionary conditions and changes in interest rates; disruptions in manufacturing facilities; product recalls and/or warranty expenses; product rework costs; impact of changes in our stock price on incentive compensation plan costs; foreign currency exchange rate fluctuations; environmental and product safety regulatory activity; effects of weather; commodity costs; freight and tariff costs (tariff relief or ability to mitigate tariffs); changes to international trade policies and agreements; uninsured product liability and class action claims, including claims seeking punitive damages, and other litigation expenses incurred due to the nature of our business; uncertainty in the retail and wholesale credit markets; performance of affiliate partners; changes in tax policy; relationships with dealers and suppliers; and the general overall global economic, social and political environment.
The risks and uncertainties discussed in this prospectus, any accompanying prospectus supplement, any free writing prospectus and the documents incorporated by reference herein and therein are not exclusive and other factors that we may consider immaterial or do not anticipate may emerge as significant risks and uncertainties.
Any forward-looking statements made as of the date of this prospectus, any accompanying prospectus, any free writing prospectus and the documents incorporated by reference herein or otherwise speak only as of the date of such statement, and we undertake no obligation to update such statements to reflect actual results or changes in factors or assumptions affecting such forward-looking statements. We advise you, however, to consult any disclosures made on related subjects in the section entitled “Risk Factors” in this prospectus, in the section entitled “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, any accompanying prospectus supplement and in other documents that are subsequently incorporated by reference.
iv
Certain market and industry data included or incorporated by reference in this prospectus have been obtained from a combination of internal surveys, third-party information and estimates by management. There are limited sources that report on our markets and industries. As such, much of the market and industry data presented in this prospectus is based on internally-generated management estimates, including estimates based on extrapolations from third-party surveys of the industries in which we compete. While we believe internal surveys, third-party information and our estimates are reliable, we have not verified them, nor have they been verified by any independent sources and we have no assurance that the information contained in third-party websites is current, up-to-date, or accurate. While we are not aware of any misstatements regarding the market and industry data presented in this prospectus, whether any such future-looking data will be accurate involves risks and uncertainties and are subject to change based on various factors, including those factors discussed under the caption “Forward-Looking Statements” in this prospectus and in the risk factors contained or incorporated or deemed incorporated by reference herein.
v
Polaris Inc. designs, engineers and manufactures powersports vehicles, which include: off-road vehicles (“ORV”), including all-terrain vehicles (“ATV”) and side-by-side vehicles; military and commercial off-road vehicles; snowmobiles; motorcycles; moto-roadsters; quadricycles; boats; and related Parts, Garments and Accessories (“PG&A”), which includes aftermarket accessories and apparel. Our products are sold online and through dealers and distributors principally located in the United States, Canada, Western Europe, Australia, and Mexico.
Polaris Inc., formerly known as Polaris Industries Inc., a Delaware corporation, was formed in 1994 and is the successor to Polaris Industries Partners LP. Our principal executive offices are located at 2100 Highway 55, Medina, Minnesota 55340 and our telephone number is (763) 542-0500. Our common stock trades on the New York Stock Exchange under the symbol “PII.”
1
Investing in the debt securities involves significant risks. Before you invest in the debt securities, in addition to the other information contained in this prospectus and in the applicable prospectus supplement, you should carefully consider the risks and uncertainties identified in Polaris Inc.’s reports filed with the SEC that are incorporated or deemed incorporated by reference into this prospectus and the applicable prospectus supplement. See “Where You Can Find More Information.”
2
Unless otherwise specified in the applicable prospectus supplement, the net proceeds from the sale of the debt securities to which this prospectus relates will be used for general corporate purposes. Until we apply the proceeds from the sale of the debt securities, we may temporarily invest any proceeds that are not immediately applied to the above purposes in United States government or agency obligations, commercial paper, money market accounts, short-term marketable debt securities, bank deposits or certificates of deposit, repurchase agreements collateralized by United States government or agency obligations or other short-term investments.
3
We have summarized below general terms and conditions of the debt securities covered by this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to the series of debt securities and/or whether the terms and conditions of the debt securities of a series will be different in one or more respects from the terms and conditions described below. Accordingly, for a description of the terms of a particular series of debt securities, reference must be made to both the prospectus supplement relating thereto and to the following summary.
We will issue any debt securities offered by this prospectus pursuant to an indenture (the “Indenture”), between us and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), a copy of which is filed as an exhibit to the registration statement and incorporated by reference into this prospectus. The Indenture is subject to and governed by the Trust Indenture Act of 1939, as amended. The following section is a summary of certain provisions of the Indenture. This summary does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Indenture, including the definitions in the Indenture of certain terms. We encourage you to read the Indenture and our debt securities for provisions that may be important to you.
All capitalized terms included in this summary shall have the same meanings specifically set forth in the Indenture. For purposes of this description, references to the “Company,” “Polaris,” “we,” “our,” and “us” refer only to Polaris Inc. and not its subsidiaries.
The Indenture does not limit the aggregate principal amount of the debt securities or of any particular series of debt securities and provides that debt securities may be issued from time to time in one or more series. The Indenture provides that debt securities will be issued in fully registered form in minimum denominations which may be specified for each particular series, if other than minimum denominations of $2,000 and integral multiples of $1,000 or the equivalent in a foreign currency. Under the Indenture, debt securities will be unsecured and will rank pari passu with our other unsecured and unsubordinated Indebtedness.
Unless otherwise described in the prospectus supplement relating to the debt securities of any particular series, there are no covenants or provisions contained in the Indenture that may afford the holders of our debt securities protection in the event of a highly leveraged transaction involving us. Any such highly leveraged transaction may adversely affect holders of our debt securities.
We will set forth in a prospectus supplement, including any pricing supplement or term sheet, the following terms of the debt securities, among others, if applicable:
• | the title of the debt securities; |
• | the price or prices (expressed as a percentage of the principal amount) at which the debt securities will be sold; |
• | any limit on the aggregate principal amount of such series of debt securities; |
• | the date or dates on which the debt securities will mature; |
• | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates at which the debt securities will bear interest, if any, and the date from which any such interest will accrue; |
• | the times at which any such interest will be payable and any regular record dates; |
• | the terms and conditions, if any, on which a particular series of debt securities shall be convertible into or exchangeable for, shares of any class or classes of our capital stock or other securities or securities of a third party, including the price or prices or the rate or rates of conversion or exchange; |
• | the currency or currencies in which principal of and any interest on the debt security may be payable; |
• | if the currency for which debt securities may be purchased, or in which principal of and interest on the debt securities may be payable is at the purchaser’s election, the manner in which such an election may be made; |
4
• | the dates, if any, on which, and the price or prices at which, the debt securities may, pursuant to any mandatory or optional sinking fund provisions, be redeemed by us; |
• | the date, if any, after which, and the price or prices at which, the debt securities may, pursuant to any optional redemption provisions, be redeemed at our option or that of the holder of our debt security; and |
• | any other terms of the debt securities. |
Governing Law
The indenture and the debt securities issued thereunder shall be governed by, and construed in accordance with, the laws of the State of New York.
The Trustee
U.S. Bank Trust Company, National Association will serve as trustee under the indenture.
5
We may sell our debt securities in any one or more of the following ways from time to time: (i) through agents; (ii) to or through underwriters, including through underwriting syndicates represented by managing underwriters; (iii) through brokers or dealers; (iv) directly by us to purchasers, including through a specific bidding, auction or other process; or (v) through a combination of any of these methods of sale. The applicable prospectus supplement will contain the terms of the transaction, name or names of any underwriters, dealers, agents and the respective amounts of debt securities underwritten or purchased by them, the initial public offering price of the debt securities, and the applicable agent’s commission, dealer’s purchase price, underwriter’s discount or other compensation arrangement. Any dealers and agents participating in the distribution of the debt securities may be deemed to be underwriters, and compensation received by them on resale of the debt securities may be deemed to be underwriting discounts.
Any public offering price, dealer purchase price, discount or commission may be changed from time to time.
The debt securities may be distributed from time to time in one or more transactions, at negotiated prices, at fixed prices (that may be subject to change), at market prices prevailing at the time of sale, at various prices determined at the time of sale or at prices related to prevailing market prices.
Offers to purchase debt securities may be solicited directly by us or by agents designated by us from time to time. Any such agent may be deemed to be an underwriter, as that term is defined in the Securities Act, of the debt securities so offered and sold.
If underwriters are utilized in the sale of any debt securities in respect of which this prospectus is being delivered, such debt securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Debt securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters. If any underwriter or underwriters are utilized in the sale of debt securities, unless otherwise indicated in the applicable prospectus supplement, the obligations of the underwriters are subject to certain conditions precedent and the underwriters will be obligated to purchase all such debt securities if any are purchased.
If a dealer is utilized in the sale of the debt securities in respect of which this prospectus is delivered, we will sell such debt securities to the dealer, as principal. The dealer may then resell such debt securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell debt securities as agent, but may position and resell as principal to facilitate the transaction or in crosses, in which the same broker or dealer acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act, of the debt securities so offered and sold.
Offers to purchase debt securities may be solicited directly by us and the sale thereof may be made by us directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof.
If so indicated in the applicable prospectus supplement, we may authorize agents and underwriters to solicit offers by certain institutions to purchase debt securities from us or at the public offering price set forth in the applicable prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the applicable prospectus supplement. Such delayed delivery contracts will be subject only to those conditions set forth in the applicable prospectus supplement.
Agents, underwriters and dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that such agents, underwriters and dealers may be required to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable prospectus supplement.
Underwriters, broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or agents may also receive compensation from the purchasers of debt securities for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular underwriter, broker-dealer or agent might be in excess of customary commissions and will be in amounts to be negotiated in connection with transactions. In effecting sales, broker-dealers engaged by us may arrange for other broker-dealers to participate in the resales.
6
Each series of debt securities will be a new issue and will have no established trading market. We may elect to list any series of debt securities on an exchange, but, unless otherwise specified in the applicable prospectus supplement, we shall not be obligated to do so. No assurance can be given as to the liquidity of the trading market for any of the debt securities.
Agents, underwriters and dealers, or their affiliates, may engage in transactions with, or perform services for, us and our respective subsidiaries in the ordinary course of business.
The place and time of delivery for debt securities will be set forth in the applicable prospectus supplement for such debt securities.
7
Unless otherwise specified in the prospectus supplement accompanying this prospectus, the validity of the debt securities to be issued by us and certain other legal matters will be passed upon for us by Davis Polk & Wardwell LLP, New York, New York. Any underwriters, dealers or agents will be advised about the validity of the debt securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
The consolidated financial statements and related financial statement schedule of Polaris Inc. appearing in Polaris Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022, and the effectiveness of Polaris Inc.’s internal control over financial reporting as of December 31, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and related financial statement schedule are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth all fees and expenses payable by the registrant expected to be incurred in connection with the issuance and distribution of the debt securities being registered hereby.
SEC registration fee | | | $ (1) |
Legal fees and expenses | | | (2) |
Trustee’s fees and expenses | | | (2) |
Rating agency fees | | | (2) |
Accounting fees and expenses | | | (2) |
Printing expenses | | | (2) |
Miscellaneous | | | (2) |
Total | | | $ (2) |
(1) | Applicable SEC registration fees have been deferred in accordance with Rules 456(b) and 457(r) under the Securities Act, and are not estimable at this time. |
(2) | These fees are calculated based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at this time. The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect of any offering of securities. |
Item 15. | Indemnification of Directors and Officers |
Limitation on Liability of Directors
Section 145 of Title 8 of the Delaware General Corporation Law (the “DGCL”) empowers a corporation, within certain limitations, to indemnify any person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement and reasonably incurred by such person in connection with any suit or proceeding to which such person is a party by reason of the fact that such person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, as long as such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation. With respect to any criminal proceedings, such person must have had no reasonable cause to believe that his or her conduct was unlawful.
In the case of a proceeding by or in the right of the corporation to procure a judgment in its favor (e.g., a stockholder derivative suit), a corporation may indemnify an officer, director, employee or agent if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation; provided, however, that no person adjudged to be liable to the corporation may be indemnified unless, and only to the extent that, the Delaware Court of Chancery or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court deems proper. A director, officer, employee or agent who is successful, on the merits or otherwise, in defense of any proceeding subject to the DGCL’s indemnification provisions must be indemnified by the corporation for reasonable expenses incurred therein, including attorneys’ fees.
As permitted by the DGCL, Polaris Inc.’s Certificate of Incorporation includes a provision that eliminates the personal liability of Polaris’ directors and officers for breach of fiduciary duty as a director or officer, as applicable, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as it exists or may be amended.
As a result of this provision, Polaris’ ability or that of Polaris’ stockholders to successfully prosecute an action against a director or officer for breach of his or her duty of care is limited. However, this provision does not affect the availability of equitable remedies such as an injunction or rescission based upon a director’s breach of his or her duty of care. The SEC has taken the position that this provision will have no effect on claims arising under the federal securities laws.
II-1
In addition, the Polaris Bylaws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise subject to or involved in any claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified by the corporation to the fullest extent permitted or required by the DGCL and any other applicable law (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than such law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith. In addition, the Polaris Bylaws provide that, if a claim for indemnification or right to advancement of expenses is not paid in full by the corporation within sixty (60) calendar days after a written claim has been received by the corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) calendar day, the indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to the fullest extent permitted or required by the DGCL (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader reimbursements of prosecution or defense expenses than such law permitted the corporation to provide prior to such amendment), to be paid also the expense of prosecuting or defending such suit.
Polaris also provides insurance, subject to certain limitations and specified exclusions, against certain liabilities incurred by Polaris’ directors and officers.
The foregoing summaries are subject to the complete text of the DGCL and Polaris Inc.’s Certificate of Incorporation and Bylaws and are qualified in their entirety by reference thereto.
Any underwriting agreements that the registrant may enter into will likely provide for the indemnification of the registrant, its controlling persons, its directors and certain of its officers by the underwriters against certain liabilities, including liabilities under the Securities Act.
Item 16. | Exhibits |
The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference.
Item 17. | Undertakings |
The undersigned registrant hereby undertakes:
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | to reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange Commission (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 Registration Fee” table in the effective registration statement; |
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; |
II-2
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of 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 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 the effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act 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. |
II-3
(6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(7) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(8) | To file an application for the purpose of determining the eligibility of the trustee to act under Subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act. |
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 Medina, State of Minnesota, on this 7th day of November, 2023.
| | | POLARIS INC. | |||||||
| | | | | | | ||||
| | | By: | | | /s/ Robert P. Mack | ||||
| | | | | Name: | | | Robert P. Mack | ||
| | | | | Title: | | | Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael T. Speetzen and Robert P. Mack, and each of them, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for such person and in such person’s name, place and stead, in any and all capacities, to sign, execute and file any amendments (including, without limitation, post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and all documents required to be filed in connection therewith, with the Securities and Exchange Commission or any regulatory authority, granting unto such 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 connection therewith and about the premises in order to effectuate the same as fully to all intents and purposes as such person might or could do if personally present, hereby ratifying and confirming all that such attorneys-in-fact and agents or any substitute or substitutes therefor may lawfully do or cause to be done. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on this 7th day of November, 2023.
/s/ Michael T. Speetzen | | | /s/ Robert P. Mack |
Michael T. Speetzen Chief Executive Officer and Director (Principal Executive Officer) | | | Robert P. Mack Chief Financial Officer (Principal Financial and Accounting Officer) |
| | | ||
/s/ John P. Wiehoff | | | /s/ George W. Bilicic |
John P. Wiehoff Chair of the Board (Director) | | | George W. Bilicic (Director) |
| | | ||
/s/ Kevin M. Farr | | | /s/ Gary E. Hendrickson |
Kevin M. Farr (Director) | | | Gary E. Hendrickson (Director) |
| | | ||
/s/ Gwenne A. Henricks | | | /s/ Darryl R. Jackson |
Gwenne A. Henricks (Director) | | | Darryl R. Jackson (Director) |
| | | ||
/s/ Bernd F. Kessler | | | /s/ Lawrence D. Kingsley |
Bernd F. Kessler (Director) | | | Lawrence D. Kingsley (Director) |
| | | ||
/s/ Gwynne E. Shotwell | | | |
Gwynne E. Shotwell (Director) | | |
INDEX TO EXHIBITS
Exhibit Number | | | Description of Exhibit |
1.1* | | | Form of Underwriting Agreement relating to the debt securities |
| | | ||
| | | Form of Indenture. | |
| | | ||
| | | Form of Debt Security (included in Exhibit 4.1). | |
| | | ||
| | | Opinion of Davis Polk & Wardwell LLP. | |
| | | ||
| | | Consent of Ernst & Young LLP. | |
| | | ||
| | | Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1). | |
| | | ||
| | | Power of Attorney of certain officers and directors of Polaris Inc. (included on the signature page of this registration statement). | |
| | | ||
| | | Form of T-1 Statement of Eligibility of Trustee. | |
| | | ||
| | | Filing Fee Table. |
* | To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of debt securities. |
Exhibits 4.1 and 4.2
INDENTURE
Between
POLARIS INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Dated as of __________, __________
Senior Debt Securities
Cross Reference Table1
|
Section of Trust Indenture Act |
Section of Indenture |
| 310(a) | 8.09 |
| 310(b) | 8.08 and 8.10 |
| 311(a) and (b) | 8.13 |
| 311(c) | Not applicable |
| 312(a) | 6.01 and 6.02(a) |
| 312(b) | 6.02(b) |
| 312(c) | 6.02(c) |
| 313(a) | 6.04(a) |
| 313(b) | 6.04(b) |
| 313(c) | 6.04(b) |
| 313(d) | 6.04(c) |
| 314(a) | 6.03; 5.06 |
| 314(b) | Not applicable |
| 314(c)(1) and (2) | 14.05 |
| 314(c)(3) | Not applicable |
| 314(d) | Not applicable |
| 314(e) | 14.05 |
| 315(a), (c) and (d) | 8.01 |
| 315(b) | 7.08 |
| 315(e) | 7.09 |
| 316(a)(1) | 7.01 and 7.07 |
| 316(a)(2) | Omitted |
| 316(a) last sentence | 9.04 |
| 316(b) | 7.04 |
| 317(a) | 7.02 |
| 317(b) | 5.03(a) |
| 318(a) and (c) | 14.07 |
1 This Cross-Reference Table does not constitute a part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
i
TABLE OF CONTENTS
Page
|
Article 1 Definitions |
||
| Section 1.01. | Definitions of Terms | 1 |
| Section 1.02. | Other Definitions | 13 |
| Section 1.03. | Incorporation by Reference of Trust Indenture Act | 13 |
| Section 1.04. | Rules of Construction | 13 |
|
Article 2 Form, Issue, Execution, Registration and Exchange of Securities |
||
| Section 2.01. | Forms Generally; Global Securities | 14 |
| Section 2.02. | Amount Unlimited; Issuable in Series | 15 |
| Section 2.03. | Denominations, Dates, Interest Payment and Record Dates | 18 |
| Section 2.04. | Execution, Authentication, Delivery and Dating | 18 |
| Section 2.05. | Exchange and Registration of Transfer of Securities | 20 |
| Section 2.06. | Mutilated, Destroyed, Lost or Stolen Securities | 21 |
| Section 2.07. | Temporary Securities | 22 |
| Section 2.08. | Cancelation of Securities Paid, etc. | 22 |
| Section 2.09. | Interest Rights Preserved | 22 |
| Section 2.10. | Computation of Interest | 22 |
| Section 2.11. | Book-Entry Provisions for Global Securities | 23 |
| Section 2.12. | CUSIP and ISIN Numbers | 24 |
|
Article 3 Redemption of Securities—Sinking Fund |
||
| Section 3.01. | Applicability of Article | 25 |
| Section 3.02. | Notice of Redemption; Selection of Securities | 25 |
| Section 3.03. | Mandatory and Optional Sinking Funds | 26 |
| Section 3.04. | Payment of Securities on Redemption; Deposit of Redemption Price | 28 |
| Article 4 Satisfaction and Discharge; Defeasance |
||
| Section 4.01. | Satisfaction and Discharge | 29 |
| Section 4.02. | Company’s Option To Effect Legal Defeasance or Covenant Defeasance | 30 |
| Section 4.03. | Legal Defeasance | 30 |
| Section 4.04. | Covenant Defeasance | 30 |
| Section 4.05. | Conditions to Legal Defeasance or Covenant Defeasance | 31 |
| Section 4.06. | Deposited Moneys and Securities To Be Held in Trust by Trustee | 32 |
| Section 4.07. | Paying Agent To Repay Moneys Held | 32 |
| Section 4.08. | Return of Unclaimed Moneys | 32 |
| Section 4.09. |
Reinstatement |
33 |
ii
| Article 5 Covenants of the Company |
||
| Section 5.01. | Payment of Principal, Premium and Interest | 33 |
| Section 5.02. | Office for Notices and Payments, etc. | 33 |
| Section 5.03. | Provision as to Paying Agent | 34 |
| Section 5.04. | Limitation on Liens | 35 |
| Section 5.05. | Sale and Leaseback Transactions | 35 |
| Section 5.06. | Annual Statement | 36 |
|
Article 6 Securityholders Lists and Reports by the Company and the Trustee |
||
| Section 6.01. | Securityholders Lists | 36 |
| Section 6.02. | Preservation of Lists | 36 |
| Section 6.03. | Reports by the Company | 37 |
| Section 6.04. | Reports by the Trustee | 37 |
| Article 7 Remedies of the Trustee and Securityholders on Event of Default |
||
| Section 7.01. | Events of Default | 38 |
| Section 7.02. | Payment of Securities on Default; Suit Therefor | 40 |
| Section 7.03. | Application of Moneys Collected by Trustee | 42 |
| Section 7.04. | Proceedings by Securityholders | 43 |
| Section 7.05. | Proceedings by Trustee | 43 |
| Section 7.06. | Remedies Cumulative and Continuing | 44 |
| Section 7.07. | Direction of Proceedings and Waiver of Defaults by Majority of Securityholders | 44 |
| Section 7.08. | Notice of Default | 45 |
| Section 7.09. | Undertaking To Pay Costs | 45 |
| Article 8 Concerning the Trustee |
||
| Section 8.01. | Duties and Responsibilities of Trustee | 45 |
| Section 8.02. | Reliance on Documents, Opinions, etc. | 46 |
| Section 8.03. | No Responsibility for Recitals, etc. | 48 |
| Section 8.04. | Trustee, Paying Agent or Security Registrar May Own Securities | 49 |
| Section 8.05. | Money To Be Held in Trust | 49 |
| Section 8.06. | Compensation and Expenses of Trustee | 49 |
| Section 8.07. | Officers’ Certificate as Evidence | 50 |
| Section 8.08. | Conflicting Interest of Trustee | 50 |
| Section 8.09. | Eligibility of Trustee | 50 |
| Section 8.10. | Resignation or Removal of Trustee | 50 |
| Section 8.11. | Acceptance by Successor Trustee | 52 |
iii
| Section 8.12. | Succession by Merger, etc. | 53 |
| Section 8.13. | Limitations on Rights of Trustee as a Creditor | 53 |
| Section 8.14. | Authenticating Agent | 53 |
| Article 9 Concerning the Securityholders |
||
| Section 9.01. | Action by Securityholders | 54 |
| Section 9.02. | Proof of Execution by Securityholders | 54 |
| Section 9.03. | Persons Deemed Absolute Owners | 55 |
| Section 9.04. | Company-Owned Securities Disregarded | 55 |
| Section 9.05. | Revocation of Consents; Future Holders Bound | 55 |
| Section 9.06. | Record Date for Securityholder Acts | 56 |
| Article 10 Securityholders’ Meetings |
||
| Section 10.01. | Purposes of Meetings | 56 |
| Section 10.02. | Call of Meetings by Trustee | 56 |
| Section 10.03. | Call of Meetings by Company or Securityholders | 57 |
| Section 10.04. | Qualifications for Voting | 57 |
| Section 10.05. | Regulations | 57 |
| Section 10.06. | Voting | 58 |
| Section 10.07. | Right of Trustee or Securityholders Not Delayed | 58 |
| Article 11 Supplemental Indentures |
||
| Section 11.01. | Supplemental Indentures Without Consent of Securityholders | 58 |
| Section 11.02. | Supplemental Indentures With Consent of Securityholders | 60 |
| Section 11.03. | Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 61 |
| Section 11.04. | Notation on Securities | 62 |
| Section 11.05. | Evidence of Compliance of Supplemental Indenture To Be Furnished Trustee | 62 |
| Article 12 Consolidation, Merger, Transfer, Sale or Lease |
||
| Section 12.01. | Company May Consolidate, etc.., Only on Certain Terms | 62 |
| Section 12.02. | Successor Person To Be Substituted | 62 |
| Section 12.03. | Opinion of Counsel To Be Given Trustee | 63 |
| Article 13 Immunity of Incorporators, Stockholders, Officers and Directors |
||
| Section 13.01. | Indenture and Securities Solely Company Obligations | 63 |
iv
| Article 14 Miscellaneous Provisions |
||
| Section 14.01. | Provisions Binding on Company’s Successors | 64 |
| Section 14.02. | Official Acts by Successor Person | 64 |
| Section 14.03. | Addresses for Notices, etc. | 64 |
| Section 14.04. | Governing Law; Waiver of Jury Trial | 64 |
| Section 14.05. | Evidence of Compliance with Conditions Precedent | 64 |
| Section 14.06. | Business Days | 65 |
| Section 14.07. | Trust Indenture Act To Control | 65 |
| Section 14.08. | Table of Contents, Headings, etc. | 66 |
| Section 14.09. | Execution in Counterparts | 66 |
| Section 14.10. | Manner of Notice to Securityholders | 66 |
| Section 14.11. | Benefits of Indenture | 67 |
| Section 14.12. | Severability | 67 |
| Section 14.13. | U.S.A. Patriot Act | 67 |
v
INDENTURE, dated as of __________, __________, between POLARIS INC., a corporation duly organized and existing under the laws of the State of Delaware (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association (the “Trustee”).
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debt securities (the “Securities”), to be issued in one or more series as provided in this Indenture.
AND WHEREAS all acts and things necessary to make this Indenture a valid agreement according to its terms have been done and performed, and the execution of this Indenture and the issue hereunder of the Securities have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the benefit of each other and for the equal and ratable benefit of the Holders of Securities or of a series thereof, as the case may be:
Article 1
Definitions
Section 1.01. Definitions of Terms. The terms defined in this Section 1.01 (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 1.01.
“Affiliate” with respect to any specified Person, shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” shall mean any Security Registrar, Paying Agent or DTC Custodian.
“Attributable Debt” shall mean, with respect to any Sale and Leaseback Transaction at any particular time, what we believe in good faith to be the present value, discounted at the interest rate implicit in the lease involved in such Sale and Leaseback Transaction, of the lessee’s obligation under the lease for rental payments during the remaining term of such lease, as it may be extended. For purposes of this definition, the term “Attributable Debt” shall not include any attributable debt resulting from any Sale and Leaseback Transactions incurred under Section 5.05 (a), (b) or (c) hereof.
For purposes of this definition, any amounts the lessee must pay, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or any amounts lessee must pay under the lease contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges are not included in the determination of the lessee’s obligations under the lease.
“Authenticating Agent” shall mean any agent of the Trustee appointed and acting pursuant to Section 8.14.
“Board of Directors” shall mean the Board of Directors of the Company or any committee of such Board of Directors which is duly authorized.
“Board Resolution” shall mean a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, or a committee thereof or other persons to whom authority has been duly delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the Trustee or banking institutions in the Borough of Manhattan, The City and State of New York are obligated or authorized by law to close.
“Capital Stock” shall mean:
| (a) | with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, and all options, warrants or other rights to purchase or acquire any of the foregoing; and |
| (b) | with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person, and all options, warrants or other rights to purchase or acquire any of the foregoing. |
“Commission” shall mean the Securities and Exchange Commission created under the Exchange Act, as from time to time constituted, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” shall mean the Person named as the “Company” in the first paragraph of this Indenture until any successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Order” shall mean a written order signed in the name of the Company by an Officer and delivered to the Trustee.
2
“Consolidated Net Tangible Assets” shall mean at the date of determination, the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities (excluding (i) any Indebtedness for money borrowed having a maturity of less than 12 months from the date of the then most recent consolidated balance sheet of the Company publicly available, but which by its terms is renewable or extendible beyond 12 months from such date at the option of the borrower and (ii) current maturities of long-term debt and finance leases) and (2) to the extent included in such aggregate amount of assets, all goodwill, trade names, trademarks, patents, customer relationships, unamortized debt discount and expense and any other like intangibles, all as set forth on the then most recent consolidated balance sheet of the Company publicly available. For purposes of calculating Consolidated Net Tangible Assets, investments, acquisitions, mergers, consolidations, dispositions, amalgamations, and any incurrence or discharge of liabilities, subsequent to the date of the most recent available consolidated balance sheet and on or prior to the date of determination, will be given pro forma effect as if they had occurred at the end of such fiscal quarter. For purposes of this definition, whenever pro forma effect is given to a transaction or other event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company.
“Corporate Trust Office of the Trustee” shall mean the designated office of the Trustee at which, at any particular time, its corporate trust business in respect of this Indenture shall be administered, which office at the date hereof is located at 100 Wall Street, 6th Floor, New York, NY, 10005, Attention: Corporate Trust Services (Polaris Inc.), or such other address as the Trustee may designate from time to time by notice to the Company or the principal corporate trust office of any successor trustee (or such other address as a successor trustee may designate from time to time by notice to the Company).
“Customer Finance Program Obligations” shall mean inventory repurchase and recourse obligations, including any obligation of the Company or any Restricted Subsidiary to repurchase products of the Company and its Restricted Subsidiaries or to purchase or repurchase receivables created in connection with the sale of products or related services of the Company and its Subsidiaries under any customer finance program, in each case incurred in the ordinary course of business.
“Default” shall mean any event which, with notice or lapse of time, or both, would constitute an Event of Default.
“Definitive Security” shall mean a certificated Security substantially in the form of Exhibit A hereto and registered in the name of the Holder thereof and issued in accordance with Section 2.01 hereof.
“Depositary” with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, shall mean DTC, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.
3
“DTC” shall mean The Depository Trust Company, a New York corporation, and its successors.
“DTC Custodian” shall mean the custodian with respect to the Global Securities or any successor entity thereto, which shall originally be the Trustee.
“Exchange Act” shall mean the Securities Exchange Act of 1934 and any successor thereto, in each case as amended from time to time.
“Foreign Government Obligations” shall mean direct non-callable obligations of, or non-callable obligations guaranteed by, (a) a government other than that of the United States or (b) an agency of such a government, in each case for the payment of which obligations or guarantee the full faith and credit of such government is pledged.
“Funded Debt” of any Person shall mean any Indebtedness created, issued, incurred, assumed or guaranteed by such Person, whether secured or unsecured, maturing more than one year after the date of determination thereof or which may by its terms be reborrowed, refunded, renewed or extended to a time more than 12 months after the date of determination thereof.
“GAAP” shall mean generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time when and for the period as to which such accounting principles are to be applied.
“Given” with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (a) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Security) or (b) sent to such Holder by first class mail, postage prepaid, at its address or by electronic transmission at its email address as it appears on the Security Register, in each case in accordance with Section 14.10. Notice so “given” shall be deemed to include any notice to be “mailed,” “sent” or “delivered,” as applicable, under this Indenture.
“Global Securities” shall mean one or more Securities, substantially in the form of Exhibit A hereto, as appropriate, that bear the Global Securities Legend and that have the “Schedule of Exchanges of Interests in the Global Security” attached thereto, that are deposited with or on behalf of and registered in the name of the Depositary, and issued in accordance with Section 2.01 or Section 2.11.
“Global Securities Legend” shall mean the legend set forth in Section 2.11(g), which is required to be placed on all Global Securities issued under this Indenture.
4
“Hedging Obligations” shall mean:
| (a) | interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; |
| (b) | other agreements or arrangements designed to manage interest rates or interest rate risk; |
| (c) | other agreements or arrangements designed to protect against fluctuations in currency exchange rates or commodity prices; and |
| (d) | other agreements or arrangements designed to protect against fluctuations in equity prices. |
“Indebtedness” shall mean, with respect to any Person on any date of determination, the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money (including indebtedness for borrowed money evidenced by notes, bonds, debentures or similar instruments) evidenced by bonds, debentures, notes or other similar instruments. The term “Indebtedness” shall not include Customer Finance Program Obligations or Non-Recourse Obligations.
“Indenture” shall mean this instrument as originally executed or if amended or supplemented as herein provided, as so amended or supplemented.
“Indirect Participant” shall mean a Person who holds a beneficial interest in a Global Security through a Participant.
“Interest Payment Date” when used with respect to any Security, shall mean the date specified in such Security as the fixed date on which an installment of interest on such Security is due and payable.
“Issue Date” shall mean, with respect to any series of Securities, the first date on which Securities of such series are issued under this Indenture.
“Lien” shall mean any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement; provided, however, that in no event shall an operating lease be deemed to constitute a Lien.
“Maturity” when used with respect to any series of Securities, shall mean the date on which the principal of such Securities becomes due and payable as therein or herein provided, whether at the stated maturity thereof or by declaration of acceleration, call for redemption or otherwise.
“Non-Recourse Obligation” shall mean Indebtedness (A) substantially related to (1) the acquisition of assets not previously owned by the Company or any of its Subsidiaries or (2) the financing of a project involving the development or expansion of the Company’s properties or properties of any of its direct or indirect subsidiaries or (B) renewing, refinancing, replacing or extending any of the types of Indebtedness referred to in the preceding clause (A), in each case, as to which the obligee with respect to such Indebtedness has no recourse to the Company or its assets other than the assets which were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
5
“Officer” means, with respect to the Company, the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, General Counsel, President, Treasurer, Assistant Treasurer, Controller, Assistant Controller, Secretary, Assistant Secretary or any Vice President of the Company
“Officer’s Certificate” means, a certificate signed by an Officer. Each such certificate shall include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
“Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel who shall be satisfactory to the Trustee. Each such opinion shall include the statements provided for in Section 14.05 if and to the extent required by the provisions of such Section.
“Original Issue Discount Security” shall mean 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 7.01.
“Outstanding” when used with reference to Securities of any series, shall, subject to the provisions of Section 9.04, mean, as of any particular time, all Securities of such series authenticated and delivered by the Trustee under this Indenture, except:
| (a) | Securities theretofore canceled by the Trustee or delivered to the Company or the Trustee for cancelation; |
| (b) | Securities, or portions thereof, for the payment or redemption of which moneys 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); 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 3, or provision satisfactory to the Trustee shall have been made for giving such notice; |
| (c) | Securities, or portions thereof, which shall have been discharged pursuant to Section 4.01 or as to which Legal Defeasance has been effected pursuant to Section 4.03; and |
| (d) | Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered, or which have been paid, pursuant to the terms of Section 2.06. |
6
In determining whether the Holders of the requisite aggregate amount of Outstanding Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 7.01.
In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of all series voting as a class have concurred in any request, demand, authorization, direction, notice, consent or waiver under this Indenture as of any date, the principal amount of a Security denominated in any foreign currency or units that shall be deemed to be Outstanding for such purposes shall be the amount of United States dollars that could be obtained for the principal amount of such Security as denominated in such currency or currency unit on the basis of the spot rate of exchange for such currency or currency unit into United States dollars as of such date.
“Participant” with respect to the Depositary, shall mean a Person who has an account with the Depositary.
“Paying Agent” shall mean any Person authorized by the Company to pay the principal of or any premium or interest on the Securities of any series on behalf of the Company.
“Permitted Liens” with respect to any Person, shall mean:
| (a) | Liens securing Indebtedness incurred to finance the construction, purchase, development, replacement or lease of, or repairs, improvements or additions to, property (whether through the direct purchase of assets or property or the Capital Stock of any Person owning such assets or property) of such Person (plus additions, improvements, accessions and replacements and customary deposits in connection therewith and proceeds, products and distributions therefrom); provided, however, that Liens may not extend to any other assets or property owned by such Person or any of its subsidiaries at the time the Lien is incurred (other than assets and property affixed or appurtenant thereto or pursuant to customary after-acquired property clauses), and the Indebtedness secured by the Lien may not be incurred more than 365 days after the later of the acquisition, completion of construction, replacement, repair, improvement, addition or commencement of full operation of the assets or property subject to the Lien; |
| (b) | Liens on assets, property or shares of Capital Stock (plus additions, improvements, accessions and replacements and customary deposits in connection therewith and proceeds, products and distributions therefrom) of another Person at the time such other Person becomes a Restricted Subsidiary of such Person (other than a Lien incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of transactions pursuant to which such Person becomes a Restricted Subsidiary); |
7
| (c) | Liens on assets or property (plus additions, improvements, accessions and replacements and customary deposits in connection therewith and proceeds, products and distributions therefrom) at the time such Person or any of its Restricted Subsidiaries acquires the assets or property, including any acquisition by means of a merger or consolidation with or into such Person or a Restricted Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than asset and property affixed or appurtenant thereto or pursuant to customary after-acquired property clauses); |
| (d) | Liens on the property of the Company or any of its Restricted Subsidiaries in favor or at the request of the United States or any State or territory thereof, or any department, agency or instrumentality or political subdivision of the United States or any State or territory thereof, or any foreign equivalent (including Liens to secure indebtedness of the pollution control or industrial revenue bond type), in order to permit the Company or a Restricted Subsidiary to perform any contract or subcontract made by it with or at the request of any of the foregoing, or to secure partial, progress, advance or other payments pursuant to any tender, bid, contract, regulation or statute, or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Liens; |
| (e) | Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another Subsidiary; |
| (f) | Liens existing on the Issue Date; |
| (g) | Liens under industrial revenue, municipal, economic development or similar tax-advantaged financings (including bonds and loan agreements); |
| (h) | Liens securing Hedging Obligations or Customer Financing Program Obligations; |
| (i) | any interest or title of a lessor under any operating lease; |
| (j) | any Lien on shares of Capital Stock of any Securitization Special Purpose Entity, Liens on assets transferred to a Securitization Special Purpose Entity or on assets of a Securitization Special Purpose Entity and Standard Securitization Undertakings, in any case incurred as part of, pursuant to or in connection with a Qualified Securitization Transaction; |
8
| (k) | Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’, construction or other similar liens arising in the ordinary course of business, or governmental (Federal, state or municipal) liens arising out of contracts for the sale of products or services by the Company or any Subsidiary, or deposits or pledges to obtain the release of any of the foregoing; |
| (l) | Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against the Company or any Subsidiary with respect to which the Company or such Subsidiary is in good faith prosecuting an appeal or proceedings for review (or for which the time to make an appeal has not yet expired) or liens incurred by the Company or any Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Company or such Subsidiary is a party; |
| (m) | Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings; |
| (n) | Liens arising from leases, licenses, subleases or sublicenses of assets granted to others that do not in the aggregate materially interfere with the ordinary conduct of the business of the Company or any Subsidiary’s business; |
| (o) | Liens consisting of easements, rights-of-way, permits, servitudes, utility easements, zoning restrictions, restrictions on the use of real property, and defects and irregularities in the title thereto, landlords’ liens and other similar liens and encumbrances none of which interfere materially with the use of the property covered thereby in the ordinary course of the business of the Company or such Subsidiary and which do not, in the opinion of the Company, materially detract from the value of such properties; |
| (p) | Liens on specific items of inventory or other goods and the proceeds thereof securing obligations of the Company or any Subsidiary in respect of documentary letters of credit or banker’s acceptances issued or created for the account of the Company or any Subsidiary, as applicable, to facilitate the purchase, shipment or storage of such inventory or goods, in each case in the ordinary course of business; |
| (q) | Liens arising out of receipt of customer deposits or advance payments from customers, or deposits required by suppliers, in each case in the ordinary course of business; |
| (r) | Liens arising from good faith deposits in connection with or to secure performance of tenders, bids, leases, government contracts, trade contracts and performance and return-of-money bonds, statutory or regulatory obligations and other similar obligations incurred in the ordinary course of business (other than obligations in respect of the payment of borrowed money); |
9
| (s) | any extension, renewal, refinancing or replacement (or successive extensions, renewals, refinancings or replacements) in whole or in part of any Lien permitted by clauses (a) through (r) above; provided, however, that the Indebtedness secured by such Lien at such time may not exceed the principal amount of Indebtedness (other than by an amount equal to any related financing costs (including, but not limited to, the accrued interest and premium, if any, on the Indebtedness being refinanced)) so secured at the time of such extension, renewal, refinancing or replacement, and such extension, renewal, refinancing or replacement will be limited to all or a part of the property (plus improvements and construction on such property), capital stock or Indebtedness which was subject to the Lien so extended, renewed, refinanced or replaced; and |
| (t) | Liens securing Indebtedness and Attributable Debt in respect of Sale and Leaseback Transactions in an aggregate principal amount at any one time outstanding, after giving effect to such Liens (and related Indebtedness and Attributable Debt) and to the retirement of any Indebtedness which is concurrently being retired other than Liens and (and related Indebtedness and Attributable Debt) permitted under clauses (a) through (s) of this definition)not to exceed the greater of 15.0% of Consolidated Net Tangible Assets (measured, for purposes of this clause (t), solely at the time of the incurrence of the Indebtedness secured by such a Lien) and $450,000,000. |
“Person” shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
“Principal Property” shall mean any manufacturing facility of the Company or any Restricted Subsidiary which is located within the United States and has a gross book value in excess of 1% of Consolidated Net Tangible Assets at the time of determination, whether now owned or hereafter acquired, other than any property which, in the opinion of the Board of Directors, is not of material importance to the business conducted by the Company and its Restricted Subsidiaries as a whole.
“Qualified Securitization Transaction” shall mean any transaction or series of transactions entered into by the Company or any Restricted Subsidiary pursuant to which the Company or such Restricted Subsidiary contributes, sells, conveys, grants a security interest in or otherwise transfers to a Securitization Special Purpose Entity, and such Securitization Special Purpose Entity contributes, sells, conveys, grants a security interest in or otherwise transfers to one or more other Persons, any Securitization Assets (whether now existing or arising in the future) or any beneficial or participation interests therein.
10
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series shall mean the date specified for that purpose as contemplated by Section 2.03.
“Responsible Officer” or “Responsible Officers” when used with respect to the Trustee shall mean one or more of the following: the chairman of the board of directors, the vice chairman of the board of directors, the chairman of the executive committee, the president, any vice president, the secretary, the treasurer, any trust officer, any assistant trust officer, any second or assistant vice president, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or any other officer to whom any corporate trust matter relating to this Indenture is referred because of his or her knowledge of and familiarity with the particular subject, and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Restricted Subsidiary” shall mean any Subsidiary of the Company where (a) substantially all the property of which is located, and substantially all the business of which is carried on, within the United States and (b) that owns any Principal Property.
“Sale and Leaseback Transaction” shall mean the sale or transfer of any Principal Property owned or leased by the Company or any Restricted Subsidiary of the Company to any Person that leases back such Principal Property to the Company or a Restricted Subsidiary.
“Securities Act” shall mean the Securities Act of 1933 and any successor thereto, in each case as amended from time to time.
“Securitization Assets” shall mean (a) all receivables, inventory or royalty or other revenue streams contributed, sold, conveyed, granted or otherwise transferred as part of, pursuant to or in connection with asset securitization transactions by the Company or any Restricted Subsidiary pursuant to agreements, instruments and other documents relating to any Qualified Securitization Transaction, (b) all assets related to such receivables, inventory or royalty or other revenue streams, including rights arising under the contracts governing or related to such receivables, inventory or royalty or other revenue streams, rights in respect of collateral and Liens securing such receivables, inventory or royalty or other revenue streams and all contracts and contractual and other rights, guarantees and other credit support in respect of such receivables, inventory or royalty or other revenue streams, any proceeds of such receivables, inventory or royalty or other revenue streams and any lockboxes or accounts in which such proceeds are deposited, spread accounts and other similar accounts (and any amounts on deposit therein) established as part of, pursuant to or in connection with a Qualified Securitization Transaction, any warranty, indemnity, repurchase, dilution and other claim, arising out of the agreements, instruments and other documents relating to such Qualified Securitization Transaction and other assets that are transferred or in respect of which security interests are granted in connection with asset securitizations involving similar assets, and (c) all collections (including recoveries) and other proceeds of the assets described in the foregoing clauses (a) and (b).
11
“Securitization Special Purpose Entity” shall mean a Person (including, without limitation, a Restricted Subsidiary) created in connection with the transactions contemplated by a Qualified Securitization Transaction, which Person engages in no business or activities other than in connection with the acquisition, disposition and financing of Securitization Assets and any business or activities incidental or related thereto and holds no assets other than Securitization Assets and other assets incidental or related to such Qualified Securitization Transaction.
“Security” or “Securities” shall mean any Security or Securities, as the case may be, authenticated and delivered under this Indenture.
“Securityholder,” “Holder of Securities” or other similar terms, shall mean any person in whose name at the time a particular Security is registered on the Security Register.
“Standard Securitization Undertakings” shall mean all representations, warranties, covenants, indemnities, performance guarantees and servicing obligations entered into by the Company or any Subsidiary (other than a Securitization Special Purpose Entity) that, taken as a whole, are customary in connection with a Qualified Securitization Transaction.
“Subsidiary” shall mean any Person of which at least a majority of the outstanding Capital Stock having by the terms thereof ordinary voting power to elect a majority of the directors or similar governing body of such Person, irrespective of whether or not at the time stock of any other class or classes of such Person shall have or might have voting power by reason of the happening of any contingency, is at the time owned or controlled directly or indirectly by the Company or by one or more Subsidiaries thereof or by the Company and one or more Subsidiaries.
“Trustee” shall mean U.S. Bank Trust Company, National Association until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. The term “Trustee” as used with respect to a particular series of the Securities shall mean only the Trustee with respect to that series.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939 as in force at the date of this Indenture as originally executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“U.S. Government Obligations” shall mean direct non-callable obligations of, or non-callable obligations guaranteed as to full and timely payment by, the United States or an agency thereof for the payment of which obligations or guarantee the full faith and credit of the United States is pledged.
12
Section 1.02. Other Definitions.
|
Term |
Defined in Section |
|
| “Covenant Defeasance” | 4.04 | |
| “Event of Default” | 7.01 | |
| “Legal Defeasance” | 4.03 | |
| “mandatory sinking fund payment” | 3.03 | |
| “Notice of Default” | 7.01 | |
| “optional sinking fund payment” | 3.03 | |
| “Security Register” | 2.05 | |
| “Security Registrar” | 2.05 | |
| “sinking fund payment date” | 3.03 |
Section 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Securities;
“indenture security holder” means a Holder of a Security;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by the Trust Indenture Act’s reference to another statute or defined by rules and regulations of the Commission under the Trust Indenture Act have the meanings so assigned to them.
Section 1.04. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
13
(d) words in the singular include the plural, and in the plural include the singular;
(e) references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time;
(f) unless the context otherwise requires, any reference to an “Article,” a “Section” or a “Subsection” refers to an Article, a Section or a Subsection, as the case may be, of this Indenture; and
(g) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, Subsection or other subdivision.
Article 2
Form, Issue, Execution, Registration and Exchange of Securities
Section 2.01. Forms Generally; Global Securities. (a) The Securities of each series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form set forth in Exhibit A hereto or as provided in a Board Resolution, an Officers’ Certificate or one or more indentures supplemental hereto and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture or any relevant Board Resolution, Officers’ Certificate or indenture supplemental hereto, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any national securities exchange on which Securities of that series may be listed, or to conform to usage. If the form of Securities of any series is established by a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery to the Trustee of the Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
(b) Global and Definitive Securities. Securities issued in global form shall be substantially in the form of Exhibit A attached hereto (including the Global Securities Legend thereon and the “Schedule of Exchanges of Interests in the Global Security” attached thereto). Securities issued in definitive form, if any, shall be substantially in the form of Exhibit A attached hereto (but without the Global Securities Legend thereon and without the “Schedule of Exchanges of Interests in the Global Security” attached thereto) and shall be printed, lithographed or engraved or produced by a combination of these methods on steel engraved borders or may be produced in any other manner, all as determined by the officer or officers of the Company executing such Securities, as evidenced by their execution of such Securities. Each Global Security shall represent such of the Outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Securities from time to time endorsed thereon and that the aggregate principal amount of Outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, payments and redemptions. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the aggregate principal amount of Outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.11 hereof.
14
(c) Exchange of Global Security For Definitive Securities. Except as provided below, owners of beneficial interests in Global Securities of any series shall not be entitled to receive Definitive Securities in exchange for their beneficial interests in a Global Security. Definitive Securities shall be transferred to all beneficial owners of a series in exchange for their beneficial interests in a Global Security if (i) the Depositary notifies the Company that it is unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when the Depositary is required to be so registered in order to act as Depositary, and in each case a successor depositary is not appointed by the Company within 90 days of such notice, (ii) the Company executes and delivers to the Trustee and Security Registrar an Officers’ Certificate stating that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to such series has occurred and is continuing and the Security Registrar has received a request from the Depositary.
In connection with the exchange of a portion of a Definitive Security for a beneficial interest in a Global Security, the Trustee shall cancel such Definitive Security, and the Company shall execute, and the Trustee shall authenticate and deliver, to the transferring Holder a new Definitive Security representing the principal amount not so transferred.
The terms and provisions contained in Securities shall constitute, and are hereby expressly made, a part of this Indenture, only with respect to Securities of the particular series, and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Security conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
Section 2.02. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in a Board Resolution, an Officers’ Certificate or one or more indentures supplemental hereto, prior to the issuance of Securities of any series, the terms of Securities of such series, including:
(a) the title of the Securities of such series (which shall distinguish the Securities of such series from all other Securities);
15
(b) any limit upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series under Sections 2.01, 2.05, 2.06, 2.11, 3.04, 11.04 and 12.02);
(c) the date or dates on which the principal of, and premium, if any, on the Securities of such series is payable or the manner of determining the same;
(d) the rate or rates (which may be fixed or variable) at which the Securities of such series shall bear interest, if any, or the method of calculation of such a rate or rates, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date;
(e) if other than in United States dollars, the currency or currencies (which may be any foreign currency or units) in which the principal of, and premium, if any, and interest on Securities of such series shall be payable;
(f) if the currency in which principal of, and premium, if any, and interest on such Securities may be payable is to be at the election of the Company or the Holders thereof, the period or periods within which, and the terms and conditions upon which, such election may be made;
(g) the place or places where the principal of, and premium, if any, and interest on the Securities of such series shall be payable, where the Securities of such series may be presented for registration of transfer and for exchange and where notices to or upon the Company in respect of such Securities may be served (if other than or in addition to the offices and agencies of the Company named in accordance with Section 5.02);
(h) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise, if the Company shall have such option;.
(i) the obligation, if any, of the Company to redeem or purchase Securities of such 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 and the terms and conditions upon which Securities of such series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(j) if other than denominations of $2,000 and any integral multiples of $1,000 in excess thereof (or the equivalent thereof in any foreign currency or units), the denominations in which Securities of such series shall be issuable;
16
(k) if other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 7.01 (or the method by which such portion shall be determined);
(l) additional Events of Default with respect to Securities of such series, if any, other than those set forth herein;
(m) if other than the Trustee named in the first paragraph of this Indenture or a successor trustee appointed pursuant to Section 8.10, the Trustee with respect to the Securities of such series;
(n) any Paying Agent (if other than the Trustee), Authenticating Agent or Security Registrar with respect to the Securities of such series;
(o) if the Securities of the series shall be issued in whole or in part in the form of a Global Security, the terms and conditions, if other than as set forth in Section 2.01 or Section 2.11, upon which such Global Security may be exchanged in whole or in part for other individual Definitive Securities of such series, the Depositary for such Global Security and the form of any legend or legends to be borne by any such Global Security in addition to or in lieu of the Global Securities Legend;
(p) the terms, if any, upon which the Securities of the series may be convertible into or exchanged for any of the Company’s common stock, preferred stock, other debt securities, other property or warrants for common stock, preferred stock, other securities or other property of any kind and the terms and conditions upon which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other additional provisions;
(q) the applicability of, and any changes or additions to Article 4;
(r) the applicability of, and any addition to or change in, the covenants (and the related definitions) set forth in Articles 5 or 12 which applies to Securities of the series;
(s) the terms applicable to Original Issue Discount Securities, including the rate or rates at which original issue discount will accrue; and
(t) any other terms of Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to issue date, issue price, the first Interest Payment Date and the first date from which interest will accrue. Unless otherwise provided, any series of Securities may be reopened for issuances of additional Securities of such series. No Board Resolution or Officers’ Certificate may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect to any series of Notes except as it may agree in writing.
17
If any of the terms of such series are established by a Board Resolution, a copy of such Board Resolution shall be delivered to the Trustee at or prior to the delivery to the Trustee of the Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
Section 2.03. Denominations, Dates, Interest Payment and Record Dates. The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 2.02. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof (or the equivalent thereof in any foreign currency or units).
Each Security shall be dated the date of its authentication and shall bear interest from such date, and such interest shall be payable on such date or dates, as shall be specified as contemplated by Section 2.02.
The person in whose name any Security of any series is registered at the close of business on any Regular Record Date with respect to any Interest Payment Date for such series shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancelation of such Security upon any registration of transfer or exchange thereof subsequent to the Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date for such series, such defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date established by notice given by or on behalf of the Company to the Holders of Securities, with a copy to the Trustee, not less than 15 days preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted interest. The term “Regular Record Date” used with respect to any Interest Payment Date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such Interest Payment Date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such Regular Record Date is a Business Day.
Section 2.04. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by an Officer. The signature of any of these officers on the Securities may be manual, electronic or facsimile. In the case of Definitive Securities of any series, such signatures may be imprinted or otherwise reproduced on such Securities.
Securities bearing the manual, electronic or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
18
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. In authenticating such Securities, and in accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be fully protected in relying upon:
(a) a Board Resolution setting forth the form and the terms of the Securities of such series;
(b) an executed supplemental indenture, if any, creating such series of Securities;
(c) an Officers’ Certificate, if any, setting forth the form and the terms of the Securities of such series; and
(d) an Opinion of Counsel stating:
(i) if the form of such Securities has been established by a Board Resolution, Officers’ Certificate or supplemental indenture as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
(ii) if the terms of such Securities have been established by a Board Resolution, Officers’ Certificate or supplemental indenture as permitted by Section 2.02, that such terms have been established in conformity with the provisions of this Indenture;
(iii) that this Indenture and any supplemental indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and
(iv) that 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, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion, with appropriate modifications, shall be delivered at or before the time of issuance of the first Security of such series.
19
The Trustee shall not be required to authenticate, or to cause any Authenticating Agent to authenticate, Securities if the issuance of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Unless otherwise provided in the form of Securities of any series, each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form set forth in Exhibit A hereto or in an indenture supplemental hereto, executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Section 2.05. Exchange and Registration of Transfer of Securities. Securities may be exchanged for one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount. Securities to be exchanged shall be surrendered at any of the offices or agencies to be maintained by the Company for such purpose as provided in Section 5.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Securityholder making the exchange shall be entitled to receive.
The Company shall keep, at one of said offices or agencies, a register or registers (each, a “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register or cause to be registered Securities and shall register or cause to be registered the transfer of Securities as in this Article 2 provided. Each Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times such Security Register shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Security at any such office or agency, the Company shall execute and register or cause to be registered and, upon receipt of a Company Order, the Trustee shall authenticate and deliver in the name of the transferee or transferees one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company or the Security Registrar) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Security Registrar, as applicable, duly executed by, the Holder or the attorney of such Holder duly authorized in writing.
20
No service charge shall be made for any exchange or registration of transfer 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 therewith.
Neither the Company nor the Trustee shall be required to exchange or register a transfer of (a) Securities of any series for a period of 15 days next preceding any selection of Securities of that series to be redeemed; (b) any Securities selected, called or being called for redemption or tendered for purchase (and not withdrawn) except, in the case of any Security to be redeemed or tendered in part, the portion thereof not to be so redeemed or tendered; or (c) any Securities between a Regular Record Date and the next succeeding Interest Payment Date.
Additional provisions with respect to Global Securities are set forth in Section 2.11 and the provisions of this Section 2.05 are, with respect to Global Securities, subject to such Section 2.11.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may, and upon satisfaction of the requirements of the next succeeding sentence shall, execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver, a new Security of the same series and of like form and principal amount and bearing a number not contemporaneously Outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company, the Trustee, any Paying Agent, Authenticating Agent or Security Registrar such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft of Securities, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Securities and of the ownership thereof.
The Trustee may authenticate any such substituted Security and deliver the same upon receipt of a Company Order. Upon the issuance of any substituted Security, 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 connected therewith. In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except for the case of a mutilated Security) if the applicant for such payment shall furnish to the Company, the Trustee, any Paying Agent, Authenticating Agent or Security Registrar such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not such destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
21
Section 2.07. Temporary Securities. Pending the preparation of Definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed or otherwise reproduced). Temporary Securities of any series shall be issuable in any authorized denomination and substantially in the form of the Definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security of such series shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Definitive Securities of such series. Without unreasonable delay the Company will execute and register and will deliver to the Trustee Definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at the principal office of the Trustee, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of Definitive Securities. Such exchange shall be made by the Company at its own expense and without any charge therefor to the Securityholders. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities of such series authenticated and delivered hereunder.
Section 2.08. Cancelation of Securities Paid, etc.. All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall be surrendered to the Trustee for cancelation and promptly canceled by it and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. If the Company shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are canceled by the Trustee.
Section 2.09. Interest Rights Preserved. Each Security of any series delivered under this Indenture upon transfer of, in exchange for or in lieu of any other Security of such series shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security of such series, and each such Security of such series shall be so dated that neither gain nor loss of interest shall result from such transfer, exchange or substitution.
Section 2.10. Computation of Interest. Except as otherwise specified as contemplated by Section 2.02, for Securities of any series, interest, if any, on the Securities of such series shall be computed on the basis of a 360-day year of twelve 30-day months.
22
Section 2.11. Book-Entry Provisions for Global Securities.
(a) This Section 2.11 shall apply only to Global Securities deposited with the Depositary.
(b) Each Global Security initially shall (i) be registered in the name of the Depositary for such Global Security or the nominee of such Depositary and (ii) be delivered to the custodian for such Depositary.
(c) Participants and Indirect Participants shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or any custodian of the Depositary 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 Participants, 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.
(d) The registered Holder of a Global Security may grant proxies and otherwise authorize any person to take any action which a Holder is entitled to take under this Indenture or the Securities.
(e) In connection with the transfer of an entire Global Security to beneficial owners pursuant to Section 2.01(c), such Global Security shall be deemed to be surrendered to the Trustee for cancelation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations.
(f) Any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by (i) the Depositary for such Global Security (or its agent) or (ii) any holder of a beneficial interest in such Global Security, and that ownership of a beneficial interest in such Global Security shall be required to be reflected in a book entry.
(g) The Global Securities shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
23
(h) The Trustee and each Agent are hereby authorized to act in accordance with any applicable procedures of the Depositary with respect to any transaction involving a Global Security.
(i) None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(j) None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under or with respect to such Security.
Section 2.12. CUSIP and ISIN Numbers. The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption or exchange or offers to purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or exchange or offers to purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, exchange or offer to purchase shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers.
24
Article 3
Redemption of Securities—Sinking Fund
Section 3.01. Applicability of Article. There may be established by a Board Resolution, Officers’ Certificate or indenture supplemental hereto, redemption, amortization and sinking fund provisions for any series of Securities; and the provisions of this Article 3 shall be applicable to the Securities of any series that are redeemable prior to their stated maturity or to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 2.02 for Securities of such series.
In addition, the Company and its Affiliates may purchase Securities from the Holders thereof from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices or otherwise. Any Securities purchased by the Company or any of its Affiliates may, at the purchaser’s discretion, be held, resold or canceled.
Section 3.02. Notice of Redemption; Selection of Securities. Notice of redemption to each Holder of Securities of any series to be redeemed as a whole or in part, with a copy to the Trustee, shall be given in the manner provided in Section 14.10 not less than 10 nor more than 60 days prior to the date fixed for redemption. Any notice which is given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. In any case, failure duly to give such notice, or any defect in such notice, to the Holder of any Security of any series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
Each such notice shall specify the date fixed for redemption, the places of redemption and the redemption price at which such Securities are to be redeemed (or the manner of calculating such redemption price if not then determinable), and shall state that payment of the redemption price of such Securities or portion thereof to be redeemed will be made on surrender of such Securities at such places of redemption, that interest accrued to the date fixed for redemption will be paid as specified in such notice, and that, unless the Company defaults in the payment thereof, from and after such date interest thereon will cease to accrue.
Any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, which will be set forth in the related notice of redemption, including completion of an offering or financing or other transaction or event. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition and, if applicable, shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions are satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions are not satisfied (or waived by the Company in its sole discretion) by the redemption date, or by the redemption date as so delayed, or such notice may be rescinded at any time in the Company’s discretion if in the good faith judgment of the Company any or all of such conditions will not be satisfied. In addition, we may provide in such notice that payment of the redemption price and performance of our obligations with respect to such redemption may be performed by another Person. If any such condition precedent has not been satisfied, the Company will provide written notice to the Trustee prior to the redemption date. Upon receipt of such notice, the notice of redemption shall be rescinded or delayed and the redemption of the Securities shall be rescinded or delayed as provided in such notice. Upon receipt, the Trustee shall provide such notice to each Holder of the Securities in the same manner in which the notice of redemption was given.
25
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before the applicable redemption date to each holder of record of the Notes to be redeemed with a copy to the Trustee.
If less than all the Securities of such series are to be redeemed, the notice shall specify the Securities of such series or portions thereof to be redeemed. In case any Security of any series is to be redeemed in part only, the notice which relates to such Security shall state the portion of the principal amount thereof to be redeemed (which, unless otherwise specified pursuant to Section 2.02, shall be $2,000 or any integral multiples of $1,000 in excess thereof, or the equivalent thereof in any foreign currency or units) and shall state that, upon surrender of such Security, a new Security or Securities in aggregate principal amount equal to the unredeemed portion thereof will be issued.
If less than all of the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the redemption date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, in accordance with the applicable rules and procedures of the Depositary, in the case of Global Securities, or, if the Securities are not represented by Global Securities, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series.
Section 3.03. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment established 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 allowed by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.” The last date on which a sinking payment with respect to any series of Securities may be made in each year is herein referred to as the “sinking fund payment date.”
At its option, the Company may reduce or satisfy its obligation to make any mandatory sinking fund payment with respect to Securities of any series by delivering to the Trustee or any Paying Agent at least 45 days before the sinking fund payment date (unless a shorter period shall be acceptable to the Trustee) an Officers’ Certificate stating the election of the Company to have credited against such mandatory sinking fund payment (a) a specified principal amount of Securities of such series which have been acquired (otherwise than by redemption) by the Company at any time, (b) a specified principal amount or Securities of such series which have been called for redemption (otherwise than through operation of the mandatory or optional sinking fund) and which are no longer Outstanding, (c) a specified principal amount of Securities of such series which have been called for redemption through operation of the optional sinking fund and which are no longer Outstanding or (d) any combination of the foregoing. Notwithstanding anything to the contrary herein expressed, any Securities of such series which shall have theretofore been made the basis for reducing the amount of Funded Debt required to be retired pursuant to Section 5.05 shall not be available as a credit against mandatory sinking fund payments pursuant to this Section 3.03. Each Officers’ Certificate shall state the principal amount of Securities of such series issued and Outstanding at the date of such Officers’ Certificate, that no Event of Default with respect to the Securities of such series has occurred and is continuing and that the Securities of such series forming the basis of such credit do not include any Securities of such series theretofore redeemed or called for redemption pursuant to any mandatory sinking fund so credited against any mandatory sinking fund payment pursuant to this Section 3.03 or made a basis for reducing the amount of Funded Debt retired pursuant to Section 5.05, and shall be accompanied by any Securities of such series being so credited which have not theretofore been delivered to the Trustee for cancelation. All Securities of any series made the basis of a credit against a mandatory sinking fund payment with respect to such series shall be credited at 100% of the principal amount thereof.
26
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash plus any unused balance of any preceding sinking fund payments made in cash, and not held for payment or redemption of particular Securities, shall exceed $50,000 (or the equivalent thereof in any foreign currency or units), or such lesser sum as the Company shall have requested with respect to the Securities of any series, the Company shall call for redemption on the relevant sinking fund payment date Securities of such series or portions thereof sufficient to exhaust all such cash as nearly as possible, at the sinking fund redemption price of 100% of principal amount thereof together with accrued interest to the date fixed for redemption. Promptly following the giving to the Trustee or any Paying Agent of the Officers’ Certificates provided for in the preceding paragraph, the Company shall select, in the manner provided in Section 3.02, for redemption on the next sinking fund payment date the Securities of such series or portions thereof to be redeemed, and shall thereupon cause notice of redemption of such Securities to be given in the manner provided in Section 3.02 for the redemption of Securities in part at the option of the Company, except that the notice of redemption shall also indicate that such Securities are being redeemed through operation of the mandatory or optional sinking fund or both, as the case may be. Subject to the provisions of Section 3.04, any sinking fund moneys not so applied to the redemption of Securities of such series shall be added to the next cash sinking fund payment with respect to such Securities and, together with such payment, shall be applied in accordance with the provisions of this Section 3.03. Any and all sinking fund moneys held on the stated maturity date of the Securities of any series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series, shall be applied, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at maturity.
27
Section 3.04. Payment of Securities on Redemption; Deposit of Redemption Price. If notice of redemption shall have been given as provided either in Section 3.02 or Section 3.03, such Securities or portions of Securities called for redemption shall become due and payable on the date and at the places stated in such notice at the applicable redemption price, together (subject to the satisfaction or waiver of any condition specified in the notice of redemption and the proviso below) with interest accrued to the date fixed for redemption of such Securities, and on and after such date, fixed for redemption (provided that the Company shall have deposited prior to such date of redemption the amount sufficient to pay the redemption price together with interest accrued to the date fixed for redemption), interest on the Securities or portions thereof so called for redemption shall cease to accrue and such Securities or portions thereof shall be deemed not to be entitled to any benefit under this Indenture except to receive payment of the redemption price together with interest accrued thereon to, but excluding, the date fixed for redemption. On presentation and surrender of such Securities at such a place of payment in such notice specified, such Securities or the specified portions thereof shall be paid and redeemed at the applicable redemption price, together with interest accrued thereon to, but excluding, the date fixed for redemption; provided, however, that, unless otherwise specified as contemplated by Section 2.02, if the redemption date for a series of Securities falls after a Regular Record Date and prior to the corresponding Interest Payment Date for such series, any accrued interest payable upon such redemption will be payable to the Holders of such Securities registered as such at the close of business on the relevant Regular Record Date according to their terms.
The Company shall not redeem any Securities of any series with sinking fund payments or mail any notice of redemption of Securities of such series during the continuance of any Event of Default with respect to such series, except that where notice of redemption of any Securities or such series theretofore has been sent, the Company shall redeem such Securities; provided, however, that funds have theretofore been deposited for such purpose. Except as aforesaid, with respect to any series of Securities, any moneys in the sinking fund for such series, and any moneys thereafter paid into the mandatory or optional sinking fund for such series, shall during such continuance be held as security for the payment of all the Securities of such series; provided, however, that in case such Event of Default with respect to such series shall have been waived pursuant to this Indenture or otherwise cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article 3.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal, and premium, if any, shall until paid bear interest from the date set for redemption at the rate borne by such Security or, in the case of an Original Issue Discount Security, at the rate specified therein.
Upon surrender of any Security redeemed in part only, the Company shall execute and register, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, a new Security or Securities of authorized denominations in aggregate principal amount equal to the unredeemed portion of the Security so surrendered.
28
Article 4
Satisfaction and Discharge; Defeasance
Section 4.01. Satisfaction and Discharge. If at any time (a) the Company shall have paid or caused to be paid the principal of and premium, if any, and interest on all the Outstanding Securities of a series as and when the same shall have become due and payable, (b) the Company shall have delivered to the Trustee for cancelation all Securities of a series theretofore authenticated (other than any Securities which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.06) or (c) (i) all such Securities of a series not theretofore delivered to the Trustee for cancelation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any Paying Agent to the Company in accordance with Section 4.08 or moneys paid to any state or to the District of Columbia pursuant to its unclaimed property or similar laws), U.S. Government Obligations or, in the case of Securities of a series denominated in a foreign currency, Foreign Government Obligations, maturing as to principal and interest in such amounts and at such times as will insure the availability of cash, or a combination of cash and U.S. Government Obligations or Foreign Government Obligations, as the case may be, sufficient without consideration of any reinvestment of interest, to pay at maturity all Outstanding Securities of such series not theretofore delivered to the Trustee for cancelation, including principal, and premium, if any, and interest due or to become due to such date of maturity, as the case may be, and if, in any such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then the Company shall be deemed to have been discharged from its obligations with respect to such Securities and this Indenture shall cease to be of further effect with respect to such series (except as to (A) rights of registration of transfer and exchange of Securities of such series, and the Company’s right of optional redemption, (B) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities of such series, (C) rights of Securityholders to receive, solely from the trust fund described in Section 4.05 and as more fully set forth in such Section, payments of principal thereof and premium, if any, and interest thereon, upon the original stated due dates therefor (but not upon acceleration of maturity) and remaining rights, if any, of the Holders of Securities of such series to receive sinking fund payments, (D) the rights, obligations and immunities of the Trustee hereunder and the obligations of the Company in connection therewith and (E) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging such satisfaction of and discharging this Indenture with respect to such series of Securities.
29
Section 4.02. Company’s Option To Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced by a Board Resolution, at any time elect to have Section 4.03 or Section 4.04 applied to any Securities or any series of Securities, as the case may be, upon compliance with the conditions set forth in Section 4.05.
Section 4.03. Legal Defeasance. Upon the Company’s exercise under Section 4.02 hereof to have this Section 4.03 applied to any series of Securities, the Company shall be deemed to have been discharged from its obligations with respect to such Securities on and after the date the conditions set forth in Section 4.05 are satisfied (hereinafter called “Legal Defeasance”). For this purpose, “Legal Defeasance” means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 4.05 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due;
(b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.11 and 5.02;
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Company in connection therewith; and
(d) the Legal Defeasance provisions of this Article 4.
Subject to compliance with this Article 4, the Company may exercise its option to have this Section applied to Securities of any series notwithstanding the prior exercise of its option to have Section 4.04 applied to such Securities.
Section 4.04. Covenant Defeasance. Upon the Company’s exercise of its option under Section 4.02 hereof to have this Section 4.04 applied to any series of Securities, (a) the Company shall be released from its obligations under Sections 5.04 through 5.06, inclusive, Section 6.03, Section 12.01, any covenants provided pursuant to Sections 11.01(b) or 11.01(i) and any covenants made applicable to such series of Securities that are subject to defeasance pursuant to the terms of the Board Resolution, Officers’ Certificate or supplemental indenture establishing the terms of such Securities pursuant to Section 2.02 and (b) the failure to comply with the terms of any such Sections, Section 7.01(d) or any such additional covenants or any additional Events of Default provided pursuant to Sections 11.01(b) or 11.01(i) and any Events of Default made applicable to such series of Securities that are subject to defeasance pursuant to the terms of the Board Resolution, Officers’ Certificate or supplemental indenture establishing the terms of such Securities pursuant to Section 2.02 shall be deemed not to be or result in a Default or an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 4.05 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, “Covenant Defeasance” means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section or any such additional covenant or Event of Default, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document and the payment of the Securities may not be accelerated because of any such failure to comply or Event of Default, but the remainder of this Indenture and such Securities shall be unaffected thereby.
30
Section 4.05. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 4.03 or Section 4.04 to any series of Securities, as the case may be:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of such Securities, cash in U.S. dollars, U.S. Government Obligations or, in the case of Securities of a series denominated in a foreign currency, Foreign Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment bankers selected by the Company (only if any U.S. Government Obligations or Foreign Government Obligations are so included), without consideration of any reinvestment of interest, to pay the principal of, premium, if any, and interest on such Securities on the stated date for payment thereof or on the applicable redemption date, as the case may be;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that:
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
31
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that the Holders and beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. 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;
(d) no Default or Event of Default shall have occurred and be continuing with respect to such series of Securities on the date of such deposit (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);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default or an Event of Default under this Indenture with respect to such series of Securities (other than a Default or 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) or any other material agreement or instrument to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound; and
(f) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance with respect to such series of Securities have been complied with.
Section 4.06. Deposited Moneys and Securities To Be Held in Trust by Trustee. All moneys and Securities deposited with the Trustee pursuant to Section 4.01 or Section 4.05 shall be held in trust and applied by it to the payment either directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and premium, if any, and interest.
Section 4.07. Paying Agent To Repay Moneys Held. Upon the satisfaction and discharge of this Indenture with respect to the Securities of any series (including by way of Legal Defeasance) all moneys then held by any Paying Agent of the Securities of such series (other than the Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
Section 4.08. Return of Unclaimed Moneys. Subject to applicable abandoned property laws, any moneys deposited with or paid to the Trustee for payment of the principal of or premium, if any, or interest on the Securities of any series and not applied but remaining unclaimed by the Holders of the Securities of such series for two years after the date upon which the principal of or premium, if any, or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand and all liability of the Trustee shall thereupon cease, and any Holder of any of the Securities of such series shall thereafter look only to the Company for any payment which such Holder may be entitled to collect.
32
Section 4.09. Reinstatement. If the Trustee is unable to apply any money, U.S. Government Obligations or Foreign Government Obligations in accordance with this Article 4 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligation under this Indenture with respect to the Securities of any series to which such money, U.S. Government Obligations or Foreign Government Obligations were to have been applied shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.01 or Section 4.05; until such time as the Trustee is permitted to apply such money, U.S. Government Obligations or Foreign Government Obligations in accordance with Section 4.01 or Section 4.05; provided, however, that if the Company has made any payment of interest or premium, if any, on or principal of any Securities of such series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Foreign Government Obligations held by the Trustee.
Article 5
Covenants of the Company
Section 5.01. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest on each of the Securities of such series at the places, at the respective times and in the manner provided in such Securities.
Section 5.02. Office for Notices and Payments, etc.. So long as any of the Securities remain Outstanding, the Company will maintain in the continental United States (and in such other place or places, as may be designated with respect to Securities of a particular series in accordance with Section 2.02) an office or agency where the Securities may be presented for registration of transfer and for exchange as provided in this Indenture, and where, at any time when the Company is obligated to make a payment upon Securities of any series (other than an interest payment as to which it has exercised its option to make such payment by check), the Securities may be presented for payment, and shall maintain at any such office or agency and at its principal office an office or agency where notices and demands to or upon the Company in respect of the Securities or of this Indenture may be served; provided, however, that the Company may maintain at its principal executive offices, in the continental United States one or more other offices or agencies for any or all of the foregoing purposes. The Company will give to the Trustee written notice of the location of each such officer or agency and of any change or location thereof. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the Corporate Trust Office of the Trustee; provided, however, nothing hereunder shall constitute an appointment of the Trustee as an agent to receive the service of legal process on the Company.
33
Section 5.03. Provision as to Paying Agent. (a) Whenever the Company shall appoint a Paying Agent other than the Trustee with respect to the Securities of any series, it shall cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 5.03:
(i) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series;
(ii) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, or interest on the Securities of such series when the same shall be due and payable; and
(iii) that it will at any time during the continuance of any such failure, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
(b) If the Company shall act as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the principal of and premium, if any, or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal and premium, if any, or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, or interest on the Securities of such series when the same shall become due and payable.
(c) Anything in this Section 5.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any Paying Agent hereunder, as required by this Section 5.03, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.03 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.03 is subject to Sections 4.07 and 4.08.
(e) Upon the occurrence of an Event of Default pursuant to Section 7.01(f) or (g), the Trustee shall automatically become the Paying Agent.
34
Section 5.04. Limitation on Liens. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create, incur or suffer to exist any Lien (other than Permitted Liens) upon any Principal Property or any shares of Capital Stock of any of our Restricted Subsidiaries, which Lien secures any Indebtedness, without making effective provisions whereby the Securities of each series then Outstanding or thereafter created (together with, at the option of the Company, any other Indebtedness of the Company or any of its Restricted Subsidiaries ranking equally in right of payment with the Securities) shall be secured by a Lien on such Principal Property or Shares of Capital Stock, equally and ratably with (or prior to) such other Lien.
Any Lien created for the benefit of Securityholders pursuant to this Section 5.04 shall be deemed automatically and unconditionally released and discharged upon the release and discharge of the Lien giving rise to the obligation to secure the Securities pursuant to this Section 5.04.
Section 5.05. Sale and Leaseback Transactions. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into a Sale and Leaseback Transaction, other than any such Sale and Leaseback Transaction (a) involving a lease for a term of not more than three years (or which may be terminated by the Company or the applicable Restricted Subsidiary within a period of not more than three years), (b) involving a lease executed by the time of, or within 365 days after the latest of, the acquisition, the completion of construction or improvement or the commencement of commercial operation of the applicable Principal Property or (c) between the Company and one of its Restricted Subsidiaries or between Restricted Subsidiaries, unless either (i) the Company or such Restricted Subsidiary would be permitted, pursuant to Section 5.04, to incur a Lien on the Principal Property subject to such Sale and Leaseback Transaction securing Indebtedness in an amount equal to the Attributable Debt of such Sale and Leaseback Transaction without equally and ratably securing the Securities, or (ii) the Company or a Restricted Subsidiary, within 365 days of entering into such Sale and Leaseback Transaction, applies an amount equal to the fair market value of the Principal Property leased pursuant to such Sale and Leaseback Transaction at the time of entering into such Sale and Leaseback Transaction, as determined in good faith by the Board of Directors (which determination shall be conclusive) to either (A) the retirement (other than any mandatory retirement) of Funded Debt, which Funded Debt, in the case of the Company, is not subordinate and junior in right of payment to the prior payment of Securities of any series; or (B) the purchase, construction, development, expansion or improvement of other comparable property.
For purposes of clause (ii) in the preceding paragraph of this Section 5.05, in the case of Securities of any series with sinking fund payments, in lieu of applying all or any part of such amount to the retirement of Funded Debt, the Company may at its option (x) deliver to the Trustee Securities theretofore purchased or otherwise acquired by the Company or (y) receive credit for Securities of series theretofore redeemed at the option of the Company or redeemed through optional sinking fund payments in accordance with the terms of such Securities and Article 3 hereof, which Securities have not theretofore been made the basis for the reduction of a mandatory sinking fund payment. If the Company shall so deliver Securities to the Trustee (or receive credit for Securities so delivered), the amount which the Company otherwise would be required to apply to the retirement of Funded Debt to comply with clause (ii) of the preceding paragraph of this Section 5.05 shall be reduced by an amount equal to the aggregate principal amount of such Securities. Securities of any series which shall have been made pursuant to this Section 5.05 the basis for a reduction of the amount of Funded Debt required to be retired shall not be available as a credit against mandatory sinking fund payments in respect of such series pursuant to Section 3.03.
35
Section 5.06. Annual Statement. So long as any Securities remain Outstanding, the Company will deliver to the Trustee within 120 days after the end of each fiscal year of the Company, beginning with the fiscal year immediately following the date of the initial issuance of Securities under this Indenture, an Officers’ Certificate, one signer of which shall be either the principal executive officer, the principal financial officer or the principal accounting officer of the Company and that need not comply with Section 14.05, stating that in the course of the performance by the signers of their duties as officers of the Company they would obtain knowledge of any default by the Company in the performance of any covenant contained in this Indenture, stating whether they have obtained knowledge of any such default, and, if so, specifying each such default of which the signers have knowledge, and the nature and status thereof. Such certificate need not include a reference to any non-compliance that has been fully cured prior to the date as of which such certificate speaks.
Article 6
Securityholders Lists and Reports by the Company and the Trustee
Section 6.01. Securityholders Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Securities of each series (in each case to the extent (and only to the extent) such information is known to the Company):
(a) semi-annually at least 15 days after each Regular Record Date for the payment of interest on Securities of such series, and
(b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished;
provided, however, that so long as the Trustee shall be the Security Registrar of the Securities of such series, such list shall not be required to be furnished.
Section 6.02. Preservation of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 6.01 or maintained by the Trustee in the capacity as Security Registrar for the Securities of such series, if so acting. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.
36
(b) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture.
(c) Each Holder of Securities of any series, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Paying Agent nor the Authenticating Agent nor 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 the Securities of such series in accordance with the Trust Indenture Act, regardless of the source from which such information was derived.
Section 6.03. Reports by the Company. (a) The Company shall file with the Trustee 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 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 within 15 days after we file the same with the Commission. We will be deemed to have complied with such requirement to the extent that such information, documents and reports are filed with the Commission via the EDGAR filing system (or any successor thereto) and such reports are publicly available.
(b) Delivery of any reports, documents and information to the Trustee pursuant to Section 6.03(a) is for informational purposes only, and the Trustee’s receipt of such reports shall not imply a duty to review and 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 Officers’ Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with any of its covenants hereunder or with respect to any reports or other documents filed with the Commission or EDGAR or any website under this Indenture.
Section 6.04. Reports by the Trustee. (a) The Trustee shall transmit to Securityholders 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. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall within 60 days after each May 15 following the date of the initial issuance of Securities under this Indenture deliver to Securityholders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a). The Trustee shall promptly deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 6.04(a).
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
37
(c) A copy of each such report shall, at the time of such transmission to all Securityholders, be filed by the Trustee with each national securities exchange, if any, upon which the Securities of any series are listed and also with the Commission. The Company shall notify the Trustee when any series of Securities is listed by the Company on any national securities exchange.
Article 7
Remedies of the Trustee and Securityholders on Event of Default
Section 7.01. Events of Default. Each of the following constitutes an “Event of Default” with respect to the Securities of any series:
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of or premium, if any, on any Securities of such series or in the payment of any mandatory sinking fund payment as and when the same shall become due and payable at the maturity thereof (whether at the stated maturity thereof or upon declaration of acceleration or call for redemption or otherwise);
(c) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained in the Securities of such series or in this Indenture (other than a covenant or agreement, the performance of which or the breach of which is included in this Indenture or an indenture supplemental hereto solely for the benefit of a series of Securities other than that series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of such series at the time Outstanding, in each case, by registered mail or by overnight air courier guaranteeing next day delivery;
(d) default by the Company under any Indebtedness of the Company having an aggregate principal amount equal to or greater than $200.0 million, whether such Indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay any portion of the principal of such Indebtedness when due and payable after the expiration of any applicable grace period with respect thereto or shall have resulted in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; provided, however, that such acceleration shall not have been rescinded or annulled within 10 days after written notice is given to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% of the Outstanding principal amount of the Securities of such series as provided in this Section 7.01; provided further that prior to any declaration of the acceleration of the Securities of such series as provided in this Section 7.01, an Event of Default under this clause will be remedied, cured or waived without further action on the part of either the Trustee or any of the Holders if the Default under such other Indebtedness is remedied, cured or waived;
38
(e) any additional Event of Default established with respect to the Securities of such series pursuant to Section 2.02;
(f) the entry of a decree or order by a court having jurisdiction in the premises for relief in respect of the Company under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official of the Company or of any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(g) the filing by the Company of a petition or answer or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the consent by it to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by the Company of an assignment for the benefit of creditors, or the failure of the Company generally to pay its debts as such debts become due, or the taking of corporate action by the Company in furtherance of any such action.
If an Event of Default (other than an Event of Default specified in Section 7.01(f) or 7.01(g)) with respect to Securities of such series at the time Outstanding occurs and is continuing, then and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare, by written notice to us and the Trustee, the principal of all the Securities of such series (or, if the Securities of such series are Original Issue Discount Securities, such portion as may be specified in the terms of such series) to be due and payable immediately and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding. If an Event of Default specified in Section 7.01(f) or 7.01(g) occurs and is continuing, the aggregate principal amount of, premium, if any, and accrued but unpaid interest on all Outstanding Securities shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
If, at any time after the principal (or, if the Securities of such series are Original Issue Discount Securities, such portion as may be specified in the terms of such series) of the Securities of such series shall have been so declared due and payable (except due to an Event of Default in the payment of the principal of or premium or interest on any Security), and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all of the Securities of such series and the principal of and premium, if any, on any and all Securities of such series which shall have become due otherwise than by acceleration, with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Securities of such series (or, in the case of Original Issue Discount Securities, at the rate or respective rates specified in the terms of such Securities), to the date of such payment or deposit and all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any and all defaults under this Indenture, other than the non-payment of principal of and accrued interest on Securities of such series which shall have become due by acceleration of maturity, shall have been remedied, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to that series and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
39
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceeding had been taken.
Section 7.02. Payment of Securities on Default; Suit Therefor. The Company covenants that (a) in case of any default in the payment of any installment of interest upon any of the Securities of any series as and when the same shall become due and payable, and if such default shall have continued for a period of 30 days, or (b) in case of any default in the payment of the principal of and premium, if any, on any of the Securities of any series as and when the same shall have become due and payable, whether at maturity of the Securities of such series or upon redemption or by declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have so become due and payable on all such Securities of such series, for principal and premium, if any, or interest, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Securities of such series (or, in the case of Original Issue Discount Securities, at the rate or respective rates specified in the terms of such Securities) 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 negligence or willful misconduct.
40
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Securities of the particular series and collect in the manner provided by law out of the property of the Company or any other obligor on such series of Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities of any series under the Federal Bankruptcy Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any similar judicial proceedings relative to the Company or other obligor upon the Securities of any series, or as the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.02, shall be entitled and empowered, by intervention in such proceedings or otherwise to file and prove a claim or claims for the whole amount of principal (or, if the Securities of such series are Original Issue Discount Securities, such principal amount as may be specified in the terms of such series) and premium, if any, and interest owing and unpaid in respect of the Securities of such series, and, in case of any judicial proceedings, 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 and of the Holders of Securities of such series allowed in such judicial proceedings relative to the Company or any other obligor on the Securities of such series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Securityholders 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 of any series of Securities, to pay to the Trustee any amount due it for compensation and expenses, including counsel fees and expense incurred by it up to the date of such distribution. 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 8.06 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.
41
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 in 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 series of Securities in respect of which such action was taken.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent or to accept or adopt on behalf of any Securityholder 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 Securityholder in any such proceeding.
Section 7.03. Application of Moneys Collected by Trustee. Any moneys or property collected by the Trustee, and after an Event of Default any moneys or other property distributable in respect of the Company’s obligations under this Indenture with respect to any series of Securities, shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys or property, upon presentation of the several Securities of such series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee pursuant to Section 8.06.
SECOND: In case the principal of the Outstanding Securities of such series in respect of which such moneys have been collected shall not have become due and be unpaid, to the payment of interest on the Securities of such series, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Securities of such series (or, in the case of Original Issue Discount Securities, at the rate or respective rates specified in the terms of such Securities), such payments to be made ratably to the persons entitled thereto.
THIRD: In case the principal of the Outstanding Securities of such series in respect of which such moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of such series for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Securities of such series (or, in the case of Original Issue Discount Securities, at the rate or respective rates specified in the terms of such Securities); and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest; and
42
FOURTH: To the payment of the remainder, if any, to the Company, its successors or assigns, or to whosoever may be lawfully entitled to the same, or as a court of competent jurisdiction may determine.
Section 7.04. Proceedings by Securityholders. Unless otherwise provided by Section 7.01, no Holder of any Security of any series shall have any right by virtue of or by availing 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 (a) such Holder previously shall have given to the Trustee written notice of an Event of Default with respect to the Securities of such series and of the continuance thereof, (b) the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder, (c) such Holder or Holders shall have offered, and if requested, provided, to the Trustee such security or indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, (d) the Trustee, for 60 days after its receipt of such notice, request and offer of security or indemnity, shall have neglected or refused to institute any such action, suit or proceeding, and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities of the same series, 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 the same series.
Notwithstanding any other provisions in this Indenture, however, the rights of any Holder of any Security to receive payment of the principal of and premium, if any, and interest on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates shall not be impaired without the consent of such Holder.
Section 7.05. Proceedings by Trustee. In case of an Event of Default hereunder, the Trustee may in its discretion 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 proceeding 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.
43
Section 7.06. Remedies Cumulative and Continuing. All powers and remedies given by this Article 7 to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Securities, 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 any of the Securities in exercising any right or power accruing upon 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 acquiescence therein; and, subject to the provisions of Section 7.04, every power and remedy given by this Article 7 or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders. With respect to the Securities of any series, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding 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; provided, however, that (subject to the provisions of Section 8.01) the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel determines that the action or proceeding so directed conflicts with this Indenture or may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers shall determine that the action or proceeding so directed could involve the Trustee in personal liability or would be unduly prejudicial to the rights of Securityholders not joining in such directions (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). Prior to taking any action as directed under this Section 7.07, the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. The Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such directions. Prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding may on behalf of all of the Holders of the Securities of such series waive any past Default or Event of Default hereunder and its consequences except a default in the payment of principal of, or premium, if any, or interest on the Securities of such series. Upon any such waiver the Company, the Trustee and the Holders of the Securities of such series (or of all Securities, as the case may be) shall be restored to their former positions and rights thereunder, respectively, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Wherever any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.07, said Default or Event of Default shall for all purposes of the Securities so affected and this Indenture to be deemed to have been cured and to be not continuing.
44
Section 7.08. Notice of Default. The Trustee shall, within the later of 30 days after knowledge of a Default or 90 days after the occurrence of a Default with respect to the Securities of any series, give to all Holders of the Securities of such series, in the manner provided in Section 14.10, notice of all Defaults actually known to a Responsible Officer of the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice. Except in the case of default in the payment of the principal of or premium, if any, or interest on any of the Securities of such series or in the making of any mandatory sinking fund payment, the Trustee shall be protected in withholding such notice if and so long as its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series (it being understood that the Trustee shall have no obligation to make such determination). The Trustee shall not be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee assigned to the corporate trust division of the Trustee shall have actual knowledge of such Default or Event of Default.
Section 7.09. Undertaking To Pay Costs. All parties to this Indenture agree and each Holder of any Securities by acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.09 shall not apply to any suit instituted by the Trustee, or to any suit instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than 10% in principal amount of the Securities of any series Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or premium, if any, or interest on any Security of any series on or after the due date expressed in such Security.
Article 8
Concerning the Trustee
Section 8.01. Duties and Responsibilities of Trustee. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of such series and after the curing or waiving of all Events of Default with respect to the Securities of such series which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of any series has occurred (which has not been cured or waived), 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.
45
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:
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all Events of Default with respect to such Securities which may have occurred,
(i) the duties and obligations of the Trustee with respect to the Securities of such series shall be determined solely by the express provisions of this Indenture; and the Trustee shall not be liable except for the performance of such duties and obligations 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 gross negligence or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any 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 any mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of no less than a majority in principal amount of the Securities of a particular series at the time Outstanding determined as provided in Section 9.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture.
(d) 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.
(e) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 8.01.
46
Section 8.02. Reliance on Documents, Opinions, etc.. Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demands of the Company mentioned herein shall be sufficiently evidenced by a Company Order or an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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 accordance with such advice or Opinion of Counsel;
(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 of Securities of any series, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered, and if requested, provided to the Trustee security or indemnity satisfactory to it 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) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, bond, debenture, coupon or other paper or document unless requested in writing to do so by the Holders of not less than a majority in principal amount of the then Outstanding Securities of all series affected; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity satisfactory to it against such expense or liability as a condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in its performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
47
(h) 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; provided, however, that the Trustee shall not be liable for the conduct or acts of any such agent, or attorney that shall have been appointed in accordance herewith with due care;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to be compensated, reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(j) in no event shall the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with Officers’ Certificates, Company Orders and any other matters or directions pursuant to this Indenture;
(l) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular series and this Indenture; and
(m) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, or other unavailability of the Federal Reserve Bank wire or facsimile 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.
Section 8.03. No Responsibility for Recitals, etc.. The recitals contained herein and in the Securities of any series (except in the certificate of authentication) 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 and shall not be responsible for the validity or sufficiency of this Indenture or of the Securities of any series. The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with the provisions of this Indenture or for any money paid to the Company or upon the Company’s directions under any provision of this Indenture. The Trustee shall not be bound to ascertain or inquire as to the performance, observance, or breach of any covenants, conditions, representations, warranties or agreements on the part of the Company, and shall not be responsible for any statement in any document used in connection with the sale of any Securities.
48
Section 8.04. Trustee, Paying Agent or Security Registrar May Own Securities. The Trustee and any Paying Agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Security Registrar.
Section 8.05. Money To Be Held in Trust. Subject to the provisions of Section 4.08, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it thereunder.
Section 8.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for its services rendered hereunder as agreed in writing from time to time by the Company and the Trustee and, subsequent to any Event of Default, in accordance with the Trustee’s then current fee schedule for default administration, and 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 reasonable 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 (with a court of competent jurisdiction determining that such loss, damage, claim, expense or liability was caused by the Trustee’s gross negligence or willful misconduct). The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred without gross negligence or willful misconduct on the part of the Trustee (with a court of competent jurisdiction determining that such loss, damage, claim, expense or liability was caused by the Trustee’s gross negligence or willful misconduct) and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder or any other Person) of liability in the premises in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a Lien prior to that of the Securities of any series 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 any particular series of Securities. The obligations of the Company under this Section 8.06 shall survive the satisfaction and discharge of this Indenture and resignation or removal of the Trustee subject to the provisions of Articles 4 and 8. When the Trustee incurs expenses or renders services after an Event of Default specified in Sections 7.01(f) or (g) hereof occurs, the expenses and the compensation for the services (including the reasonable fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any bankruptcy law. “Trustee” for the purposes of this Section 8.06 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however, that the negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
49
Section 8.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section 8.01, 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, suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate and/or Opinion of Counsel delivered to the Trustee, and such Certificate and/or Opinion of Counsel, 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 in reliance thereon.
Section 8.08. Conflicting Interest of Trustee. If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. There shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act, to the extent permitted by such Act, each series of Securities issued under this Indenture and any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met.
Section 8.09. Eligibility of Trustee. The Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States or any State thereof or of the District of Columbia authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 subject to supervision or examination by Federal, state or District of Columbia authority. If such corporation publishes reports of conditions at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.10.
Section 8.10. Resignation or Removal of Trustee. (a) The Trustee may at any time upon 30 days’ notice resign with respect to one or more or all series of Securities by giving written notice of such resignation to the Company and by mailing notice thereof to the Holders of the affected series of Securities at their addresses as they shall appear in the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the affected series by written instrument, in duplicate, 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 and have accepted such appointment with respect to any series within 60 days after the mailing of such notice of resignation to the Holders of the Securities of such series, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the affected series for at least six months may, subject to the provisions of Section 7.09, on behalf of such Securityholder 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.
50
(b) In the case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 8.08 after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of the affected series for at least six months;
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09 and shall fail to resign after written request thereof by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be adjudged to be bankrupt or insolvent, or commences a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to any affected series of Securities upon 30 days’ notice 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, subject to the provisions of Section 7.09, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may, on behalf of such Securityholder 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.
(c) The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time upon 30 days’ notice remove the Trustee with respect to such series and nominate with respect to such series a successor trustee which shall be deemed appointed as successor trustee unless within 10 days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of a Security of such series, upon the terms and conditions and otherwise as provided in Section 8.10(a), may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to such series.
51
(d) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 8.11. The resigning Trustee shall not be liable for the actions of the successor trustee.
Section 8.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series 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 amounts then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm 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 the provisions of Section 8.06.
If a successor trustee is appointed 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 a trustee of a trust or trusts under separate indentures.
No successor trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09.
52
Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, the Company shall mail notice of the succession of such trustee hereunder to all Holders of Securities of any series for which such successor trustee is acting as trustee as the names and addresses of such Holders appear in the Security Register. If the Company fails to mail notice in the prescribed manner within 10 days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company.
Section 8.12. Succession by Merger, etc.. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of 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 the parties hereto.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture and any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificates of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 8.13. Limitations on Rights of Trustee as a Creditor. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall continue to be subject to Section 311(a) of the Trust Indenture Act.
Section 8.14. Authenticating Agent. There may be one or more Authenticating Agents appointed by the Trustee with power to act on its behalf and subject to its direction in the authentication and delivery of Securities of one or more series and in connection with transfers and exchanges under Sections 2.01, 2.04, 2.05, 2.06, 2.07, 2.11, 3.04, 11.04 and 12.02, as fully to all intents and purposes as though such Authenticating Agents had been expressly authorized by those Sections to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities by any Authenticating Agent pursuant to this Section 8.14 shall be deemed to be the authentication and delivery of such Securities by the Trustee. One of any such Authenticating Agents shall at all times be a bank or trust company having its principal office in the Borough of Manhattan, The City and State of New York, and of the character and qualification set forth in Section 8.09.
53
Any Person into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor Person is otherwise eligible under this Section 8.14, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent or such successor Person.
Any Authenticating Agent may at any time resign with respect to any series of Securities by giving written source of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice or termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible with respect to any series of Securities under this Section 8.14, the Trustee shall promptly appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall mail, in the manner provided in Section 14.10, notice of such appointment to the Holders of Securities of the affected series.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services as agreed by such Authenticating Agent and the Company.
The provisions of Sections 8.02, 8.03, 8.04, 8.06, and 9.03 shall be applicable to any Authenticating Agent.
Article 9
Concerning the Securityholders
Section 9.01. Action by Securityholders. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any or all series 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 have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed by writing, (b) by the record of such Securityholders voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article 10, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
Section 9.02. Proof of Execution by Securityholders. Subject to the provisions of Sections 8.01 and 10.05, proof of the execution of any instruments by a Securityholder or the agent or proxy for such Securityholder shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
54
The record of any Securityholders’ meeting shall be proved in the manner provided in Section 10.06.
Section 9.03. Persons Deemed Absolute Owners. The Company, the Trustee, any Paying Agent, Authenticating Agent and Security Registrar may deem the person in whose name any Security shall be registered upon the Security Register of the Company to be, and may treat them as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to Section 2.03) interest, if any, on such Security, and for all other purposes, and neither the Company nor the Trustee nor any Paying Agent nor the Authenticating Agent nor any Security Registrar shall be affected by any notice to the contrary. All such payments shall be valid and effective to satisfy and discharge the liability upon any such Security to the extent of the sum or sums to be paid.
Section 9.04. Company-Owned Securities Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture, the Securities of that series which are owned by the Company or any other obligor on the Securities of that series or by an Affiliate of the Company or any other obligor on the Securities shall be disregarded and declared not to be Outstanding for the purpose of any such determination; provided, however, that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities of such series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section 9.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not an Affiliate. In the 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.
Section 9.05. Revocation of Consents; Future Holders Bound. 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 specified in this Indenture in connection with such action, any Holder of a Security 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 it 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 on all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether or not any notation thereof is made upon such Security or such other Securities.
55
Section 9.06. Record Date for Securityholder Acts. If the Company shall solicit from the Holders of Securities of any or all series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by resolution of the Board of Directors, fix in advance a record date for the determination of Securityholders entitled to give such request, demand, and authorization, directive, notice, consent, waiver or other act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, directive, notice, consent, waiver or other act may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such requests, demand, authorization, directive, notice, consent, waiver or other act, and for that purpose the Outstanding Securities shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by the Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture no later than six months after the record date.
Article 10
Securityholders’ Meetings
Section 10.01. Purposes of Meetings. A meeting of Securityholders of Securities of any or all series may be called any time and from time to time pursuant to the provisions of this Article 10 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article 7:
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 8;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of any of all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 10.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any or all series to take any action specified in Section 10.01, to be held at such time and at such place as the Trustee shall determine. Notice of every such meeting of Securityholders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to Holders of the Securities of each series that may be affected by the action proposed to be taken at such meeting in the manner provided in Section 14.10. Such notice shall be given not less than 15 nor more than 90 days prior to the date fixed for such meeting.
56
Section 10.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a resolution of the Board of Directors, or the Holders of at least 10% in aggregate principal amount then Outstanding of the Securities of any or all series affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of Holders of Securities of any or all series, as the case may be, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 10.01, by giving notice thereof as provided in Section 10.02.
Section 10.04. Qualifications for Voting. To be entitled to vote at any meetings of Securityholders a person shall (a) be a Holder of one or more Securities of a series affected by the action proposed to be taken or (b) be a person appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The only persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 10.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by the Securityholders as provided in Section 10.03, in which case the Company or Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 9.04, at any meeting each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount of Securities (in the case of Original Issue Discount Securities, such principal amount is to be determined as provided in the definition of “Outstanding”), or the equivalent thereof in any foreign currency or units, held or represented by such Securityholder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding, which ruling shall be conclusive and binding for purposes of such vote. The chairman of the meeting shall have no right to vote other than by virtue of Securities held by such chairman or instrument in writing as aforesaid duly designating such chairman as the person to vote on behalf of other Securityholders. At any meeting of Securityholders duly called pursuant to the provisions of Section 10.02 or Section 10.03, the presence of persons holding or representing Securities in an aggregate principal amount sufficient to take action on any business for the transaction for which such meeting was called shall constitute a quorum. Any meeting of Securityholders duly called pursuant to the provisions of Section 10.02 or Section 10.03 may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
57
Section 10.06. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities or of their representatives by proxy and the principal amount of Securities or of their representatives by proxy and the principal amount of Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 10.02. The record shall show the principal amount of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 10.07. Right of Trustee or Securityholders Not Delayed. Nothing in this Article 10 contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Securities of any or all series under any of the provisions of this Indenture or of the Securities.
Article 11
Supplemental Indentures
Section 11.01. Supplemental Indentures Without Consent of Securityholders. The Company, when authorized by resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
58
(a) to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article 12;
(b) to make any change that would provide any additional rights or benefits to the Holders of Securities of any series (including to secure Securities of any series, add guarantees with respect thereto, to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of the Securities or any or all series, as the case may be, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a Default or an Event of Default with respect to such series of Securities 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, restriction or condition with respect to such series of Securities 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;
(c) to provide for the issuance under this Indenture of Securities of any series in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or the Securities of such series which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or the Securities of such series, or to make such other provisions in regard to matters or questions arising under this Indenture as shall not adversely affect the interests of the Holders of the Securities of any series in any material respect;
(e) to evidence and provide for the acceptance of appointment by another person as a successor trustee hereunder with respect to any series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to Section 8.11;
(f) to surrender any right or power contained herein or in any supplement indenture or the Securities of such series conferred to the Company;
(g) to change or eliminate any of the provisions of this Indenture; provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
59
(h) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(i) to make any addition, change or elimination to any of the provisions contained herein or in any supplement indenture in respect of the Securities of any series to be created in the future;
(j) to conform the text of this Indenture or the terms of the Securities of any series to any corresponding provision of the prospectus, prospectus supplement, offering memorandum, offering circular or other document pursuant to which such Securities were offered and setting forth the final terms of such Securities; and
(k) to establish the form or terms of Securities of any series, as permitted by Sections 2.01 and 2.02.
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 and assignment 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.
Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities of the affected series at the time Outstanding, notwithstanding any of the provisions of Section 11.02.
Section 11.02. Supplemental Indentures With Consent of Securityholders. With the consent (evidenced as provided in Section 9.01) of the Holders of at least a majority of the aggregate principal amount of the Securities of any series at the time Outstanding that would be affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such series), the Company, when authorized by resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying the rights of the Holders of the Securities of such series; provided, however, that no such supplemental indenture shall (a) extend the fixed maturity of any Security of such series, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or any premium thereon, extend the time of or reduce the amount of any mandatory sinking fund payment, reduce the amount payable upon the redemption of any Security or accelerate the time at which such Security may be redeemable, or make the principal of any Security or any premium or interest thereon payable in any coin or currency other than that provided for in the Securities of such series, waive a Default or Event of Default in the payment of principal of or any premium or interest on the Securities of any series (except a rescission of acceleration of the Securities issued under this Indenture by the Holders of at least a majority in aggregate principal amount of the Securities of such series then Outstanding with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration) or impair the rights of the Securityholders to institute suit for the enforcement of any payment of principal of or premium, if any, or interest on any Security of such series, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of all Securities of such series then Outstanding.
60
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture which has expressly been included for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Company, accompanied by a Company Order, a Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, 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.
It shall not be necessary for the consent of the Holders of Securities of any series under this Section 11.02 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 pursuant to the provisions of this Section 11.02, the Company shall give notice in the manner provided in Section 14.10, setting forth in general terms the substance of such supplemental indenture, to all Holders of Securities of the affected series. 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.
Section 11.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article 11 shall comply with the Trust Indenture Act as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 11, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of the 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.
61
Section 11.04. Notation on Securities. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 11 may, but are not required to, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities so modified as to conform in the opinion of the Trustee and the Board of Directors to any modification of this Indenture contained in any such supplemental indenture may, but are not required to, be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
Section 11.05. Evidence of Compliance of Supplemental Indenture To Be Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and 8.02, shall be entitled to receive and (subject to Section 8.01) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 11.
Article 12
Consolidation, Merger, Transfer, Sale or Lease
Section 12.01. Company May Consolidate, etc.., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or sell, transfer or lease its properties and assets substantially as an entirety to any Person, nor may any other Person consolidate with or merge into the Company, unless:
(a) the Person (if other than the Company) formed by or resulting from any such consolidation or merger, or the Person which shall have purchased or received the transfer of, or which leases, the properties and assets of the Company substantially as an entirety, shall be a corporation, limited liability company or limited partnership organized and existing under the laws of the United States or any State or territory thereof or the District of Columbia (and if such Person is not a corporation, a co-obligor of the Securities is a corporation organized and existing under such laws), and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest on all the Securities and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed; and
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have happened and be continuing.
Notwithstanding Section 12.01(b), the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
Section 12.02. Successor Person To Be Substituted. Upon any consolidation or merger of the Company, or any sale or transfer of the properties and assets of the Company substantially as an entirety, in accordance with Section 12.01, the successor Person formed by such consolidation or into which the Company is merged or to which such sale or transfer is made shall succeed to and be fully substituted for the Company, with the same effect as if it had been named herein as the Company and the Company shall thereupon be released from all obligations hereunder and under the Securities, and the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up or liquidated; provided that in the case of a lease of the Company’s property and assets substantially as an entirety, the predecessor Person shall not be released from its obligation to pay principal and interest on the Securities. Such successor Person thereupon may cause to be signed, and may issue either in its own name or in the name of Polaris Inc., any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any securities which such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
62
In case of any such consolidation, merger, sale, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
Section 12.03. Officers’ Certificate and Opinion of Counsel To Be Given Trustee. The Trustee, subject to Sections 8.01 and 8.02, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, transfer or lease complies with the provisions of this Article 12.
Article 13
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. Indenture and Securities Solely Company Obligations. No recourse for the payment of the principal of or premium, if any, or interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company, contained in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, past, present or future, of the Company or any successor Persons, either directly or through the Company or any such successor Persons, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities.
63
Article 14
Miscellaneous Provisions
Section 14.01. Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements made by the Company in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 14.02. Official Acts by Successor Person. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Person that shall at the time be the lawful sole successor of the Company.
Section 14.03. Addresses for Notices, etc.. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Securityholders on the Company may be given or served by being deposited postage prepaid in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Polaris Inc., 2100 Highway 55, Medina, Minnesota, to the attention of the Vice President, Chief Tax Officer. Any notice, direction, request or demand by any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee. The Trustee shall have the right, but shall not be required, to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar unsecured electronic methods by persons reasonably believed by the Trustee to be authorized to give instructions and directions on behalf of the Company or any Person. The Trustee shall have no duty or obligation to verify or confirm that the Person who sent such instructions or directions is, in fact, a Person authorized to give instructions or directions on behalf of the Company or any Person; and the Trustee shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by the Company as a result of such reliance upon or compliance with such instructions or directions, other than through the Trustee’s negligence or willful misconduct. 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.
Section 14.04. Governing Law; Waiver of Jury Trial. This Indenture and each Security shall be governed by, and construed in accordance with, the laws of the State of New York. THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR ANY TRANSACTION CONTEMPLATED THEREBY.
Section 14.05. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
64
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that each person providing such certificate or opinion has read such covenant or condition and the definitions relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (c) a statement that, in the opinion of each 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 or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such person, or that they be so certified or covered by only one document, but one such person may certify or give an opinion with respect to some matters and one or more other such persons as to other matters, and any such person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company.
Any certificate, statement or opinion of any officer of the Company, or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants.
Where any person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 14.06. Business Days. In any case where the date of maturity of interest on, if any, or principal of any Security or the date fixed for redemption of any Security is not a Business Day, then payment of such interest or principal or premium, if any, need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity of the date fixed for redemption, and, in the case of payment, no interest shall accrue for the period from and after such date.
Section 14.07. Trust Indenture Act To Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 through 317, inclusive, of the Trust Indenture Act, such required provision shall control.
65
Section 14.08. Table of Contents, Headings, etc.. The table of contents, the cross reference table and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 14.09. Execution in 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 or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. When used in herein, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Security or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee. The Company assumes all risks arising out of the use of electronic signatures and electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized communication, and the risk of interception or misuse by third parties.
Section 14.10. Manner of Notice to Securityholders. Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture or any Security provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by electronic transmission, to each Holder affected by such event, at his address or email address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice; provided that notices given to Holders of Global Securities may be given through the facilities of the Depositary. In any case where notice to Holders is given, neither the failure to send such notice, nor any defect in any notice so sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
66
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 14.11. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 14.12. Severability. If any provision in this Indenture is deemed unenforceable, it shall not affect the validity or enforceability of any other provision set forth herein, or of the Indenture as a whole.
Section 14.13. U.S.A. Patriot Act. The Company acknowledges that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
[Remainder of page left intentionally blank]
67
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
| POLARIS INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE | ||
| By: | ||
| Name: | ||
| Title: | ||
[FORM OF FACE OF SECURITY]
POLARIS INC.
[Global Securities Legend]
THIS GLOBAL SECURITY IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 11.04 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED PURSUANT TO SECTION 2.01(c) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELATION PURSUANT TO SECTION 2.08 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
[Form of Face of Security]
POLARIS INC.
% SENIOR NOTES DUE
CUSIP No.
ISIN No.
No.
Polaris Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of [$ ( ________ dollars)] / [insert if Global Security: the principal amount set forth on the Schedule of Exchanges of Interests in Global Securities attached hereto, which principal amount may from time to time be reduced or increased, as appropriate, in accordance with the within mentioned Indenture and as reflected in the Schedule of Exchanges of Interests in the Global Security attached hereto, to reflect exchanges or redemptions of the Securities represented hereby,] on , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on and in each year, commencing , at the rate of % per annum, until the principal hereof is paid or made available for payment; provided, however that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Security is registered at the close of business on a date to be fixed by the Company for the payment of such Defaulted Interest (a “Special Record Date”), notice whereof shall be given to Holder of Securities of this series not less than 15 days prior to such Special Record Date.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture referred to or the reverse hereof in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
A-2
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
This Security shall be governed by, and construed in accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| POLARIS INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE | ||
| By: | ||
| Authorized Signatory | ||
A-4
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of , (herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $ .
The Securities of this series shall be redeemable at the Company’s option in accordance with the terms and conditions specified in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
A-5
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security may be registered and this Security may be exchanged as provided in the Indenture.
The Securities of this series are issuable only in registered form without coupons in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal of or premium, if any, or interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company, contained in the Indenture or in any supplemental indenture, or in any Security, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, past, present or future, of the Company or any successor Persons, either directly or through the Company or any such successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise. Each Holder by accepting a Security waives and releases all such liabilities. The waiver and release are part of the consideration for issuance of the Securities.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
A-6
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
| (Insert assignee’s social security or tax I.D. no.) |
(Print or type assignee’s name, address and zip code)
and irrevocably appoint as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
| Your Signature: | |
| (Sign exactly as your name appears on the other side of this Security) | |
| Your Name: |
|
| Date: | |
| Signature Guarantee: |
|
*NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee
A-7
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The initial Outstanding principal amount of this Global Security is $ .
The following exchanges of an interest in this Global Security for an interest in another Global Security or for a Definitive Security, exchanges of an interest in another Global Security or a Definitive Security for an interest in this Global Security, or exchanges or purchases of a part of this Global Security have been made:
|
Date of Exchange |
Amount of |
Amount of |
Principal |
Signature of |
A-8
 |
Davis Polk & Wardwell llp
450 Lexington Avenue
New York, NY 10017 davispolk.com
|
Exhibit 5.1 and 23.2
November 7, 2023
Polaris Inc.
2100 Highway 55
Medina, Minnesota 55340
Ladies and Gentlemen:
Polaris Inc., a Delaware corporation (the “Company”) is filing with the Securities and Exchange Commission a Registration Statement on Form S-3 (the “Registration Statement”)
for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), the Company’s debt securities (the “Debt Securities”), which may be
issued pursuant to an indenture (the “Indenture”) between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to
authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural
persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to
matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Indenture and any supplemental indenture to be entered into in connection with the issuance of any
Debt Securities have been duly authorized, executed and delivered by the Trustee and the Company; the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the Indenture; and such Debt
Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture and the applicable underwriting or other agreement against payment therefor, such Debt Securities will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability,
provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed
above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Debt Securities to the extent determined to constitute unearned
interest.
|
Polaris Inc.
|
2
|
November 7, 2023
|
In connection with the opinion expressed above, we have assumed that, at or prior to the time of the delivery of any such security, (i) the Board of Directors of the Company shall have duly established the terms of such security and duly
authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded; (ii) the Company is, and shall remain, validly existing as a corporation in good standing under the laws of the State of Delaware;
(iii) the Registration Statement shall have become effective and such effectiveness shall not have been terminated or rescinded; and (iv) the Indenture and the Debt Securities are each valid, binding and enforceable agreements of each party thereto
(other than as expressly covered above in respect of the Company); and (v) there shall not have occurred any change in law affecting the validity or enforceability of such security. We have also assumed that the terms of any security whose terms are
established subsequent to the date hereof and the issuance, execution, delivery and performance by the Company of any such security (a) require no action by or in respect of, or filing with, any governmental body, agency or official and (b) do not
contravene, or constitute a default under, any provision of applicable law or public policy or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon the Company.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration
Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in this Registration Statement (Form S-3) and related Prospectus of Polaris Inc. for the issuance of debt securities, and to the incorporation by reference therein of our report
dated February 17, 2023, with respect to the consolidated financial statements and the financial statement schedule of Polaris Inc. and the effectiveness of internal control over financial reporting of Polaris Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
November 7, 2023
November 7, 2023
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
|
800 Nicollet Mall
Minneapolis, Minnesota
|
55402
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Benjamin J. Krueger
U.S. Bank Trust Company, National Association, 100 Wall Street, 6th floor
New York, New York 10005 (212) 951-8579
(Name, address and telephone number of agent for service)
Polaris Inc.
(Issuer with respect to the Securities)
|
Delaware
|
41-1790959
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
|
2100 Highway 55
Medina, Minnesota
|
55340
|
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
|
|
a) | Name and address of each examining or supervising authority to which it is subject. |
|
Comptroller of the Currency
Washington, D.C.
|
| b) | Whether it is authorized to exercise corporate trust powers. |
| Yes |
| Item 2. |
AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
|
| None |
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
|
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. |
A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2. |
| 4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 3. |
| 5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 4. |
| 7. |
Report of Condition of the Trustee as of June 30, 2023, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 5. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, State of New York on the 7th of November, 2023.
|
|
By: | /s/ Benjamin J. Krueger | |
|
|
|
Benjamin J. Krueger | |
|
|
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of
Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business
beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of
the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the
shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000,
as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the
number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are
removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by
resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence
of a quorum in connection with any board action, and shall not be required to own qualifying shares.
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
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single
candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said
capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any
obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board
of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior
to any such transfers.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders,
provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the
Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities
of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents,
a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this
Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) |
Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the
shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or
outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location
permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any
time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail,
postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the
vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior
written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb |
|
| Jeffrey T. Grubb |
|
|
|
|
| /s/ Robert D. Sznewajs |
|
| Robert D. Sznewajs |
|
|
|
|
| /s/ Dwight V. Board |
|
| Dwight V. Board |
|
|
|
|
| /s/ P. K. Chatterjee |
|
| P. K. Chatterjee |
|
|
|
|
| /s/ Robert Lane |
|
| Robert Lane |
|
Exhibit 2
Exhibit 3
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or
President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the
“OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the
designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action
or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any
shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided
by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of
all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the
General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and
may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five-
member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of
the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board;
provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by
shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying
equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the
day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum
present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the
entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least
twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to
be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and
the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the
act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as
part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which
all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that
purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this
Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility
for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its
trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions
taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent
permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine
policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities
to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not
delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers,
employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all
times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in
sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its
purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the
Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive
powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties
as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is
absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the
giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association;
shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform
such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other
officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these
Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification
or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues
certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in
which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite
on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the
Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may
be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted
on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by
written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of
Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in
appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and
class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be
expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter
amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including
attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage
of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking
agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party,
as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound
banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal
banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 4
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: November 7, 2023
|
|
By: | /s/ Benjamin J. Krueger | |
|
|
|
Benjamin J. Krueger | |
|
|
|
Vice President |
Exhibit 5
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 06/30/2023
($000’s)
|
06/30/2023
|
||||
|
Assets
|
||||
|
Cash and Balances Due From
|
$
|
876,858
|
||
|
Depository Institutions
|
||||
|
Securities
|
4,335
|
|||
|
Federal Funds
|
0
|
|||
|
Loans & Lease Financing Receivables
|
0
|
|||
|
Fixed Assets
|
1,727
|
|||
|
Intangible Assets
|
579,801
|
|||
|
Other Assets
|
144,570
|
|||
|
Total Assets
|
$
|
1,607,291
|
||
|
Liabilities
|
||||
|
Deposits
|
$
|
0
|
||
|
Fed Funds
|
0
|
|||
|
Treasury Demand Notes
|
0
|
|||
|
Trading Liabilities
|
0
|
|||
|
Other Borrowed Money
|
0
|
|||
|
Acceptances
|
0
|
|||
|
Subordinated Notes and Debentures
|
0
|
|||
|
Other Liabilities
|
82,010
|
|||
|
Total Liabilities
|
$
|
82,010
|
||
|
Equity
|
||||
|
Common and Preferred Stock
|
200
|
|||
|
Surplus
|
1,171,635
|
|||
|
Undivided Profits
|
353,446
|
|||
|
Minority Interest in Subsidiaries
|
0
|
|||
|
Total Equity Capital
|
$
|
1,525,281
|
||
|
Total Liabilities and Equity Capital
|
$
|
1,607,291
|
||