STX 8-K
Seagate Technology Holdings plc (STX)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR § 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR § 240.12b-2).
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 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into Material Definitive Agreement. |
On June 18, 2020, Seagate HDD Cayman (“Seagate HDD”), an exempted company with limited liability organized under the laws of the Cayman Islands and a subsidiary of Seagate Technology plc (the “Company”), issued $500 million in aggregate principal amount of 4.091% Senior Notes due 2029 (the “New Notes”) in connection with Seagate HDD’s exchange offers to certain eligible holders of Seagate HDD’s outstanding 4.750% Senior Notes due 2025 and 4.875% Senior Notes due 2027 (the “Exchange Offers”). The New Notes mature on June 1, 2029, and were issued pursuant to an indenture, dated as of June 18, 2020 (the “Indenture”), among Seagate HDD, the Company and Wells Fargo Bank, National Association, as trustee of the New Notes (the “Trustee”). The Company has also entered into a registration rights agreement related to the New Notes, dated as of June 18, 2020 (the “Registration Rights Agreement”), among Seagate HDD, the Company and Morgan Stanley & Co. LLC and BofA Securities, Inc., as the lead dealer managers for the Exchange Offers.
Certain of the dealer managers for the Exchange Offers and their affiliates have provided certain commercial banking, financial advisory, investment banking and other services to the Company and its affiliates in the ordinary course of their business, for which they have received customary fees and commissions. The Trustee and affiliates of each of the dealer managers act as lenders and the Trustee and affiliates of certain dealer managers act as agents under our credit agreement.
Indenture and New Notes
The following is a brief description of the material provisions of the Indenture and the New Notes. This description of the Indenture and the New Notes is qualified in its entirety by the Indenture and the form of 4.091% Senior Notes due 2029 (included in the Indenture), filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference.
Interest
Interest on the New Notes will be payable in cash semiannually on June 1 and December 1 of each year, commencing on December 1, 2020, to holders of record of the New Notes on the May 15 and November 15 immediately preceding the interest payment date.
Guarantee
The obligations of Seagate HDD pursuant to the Indenture, including any repurchase obligation resulting from a Change of Control Triggering Event (as defined in the Indenture), are fully and unconditionally guaranteed, on a senior unsecured basis, by the Company (the “Guarantee”).
Ranking
The New Notes are unsecured and will rank equally in right of payment with all of Seagate HDD’s other existing and future senior unsecured indebtedness and senior to any future subordinated indebtedness of Seagate HDD. The Guarantee will rank equally in right of payment with all of the Company’s other existing and future unsecured indebtedness. The New Notes will be effectively subordinated to the Company’s and Seagate HDD’s present and future secured debt, to the extent of the value of the assets securing that debt, and will be structurally subordinated to all present and future liabilities, including trade payables, of Seagate HDD’s subsidiaries that do not guarantee the New Notes (including liabilities pursuant to guarantees provided by certain of our subsidiaries of any borrowings under our credit agreement).
Optional Redemption
At any time before March 1, 2029 (three months prior to the maturity date of the New Notes), Seagate HDD may redeem any or all of the New Notes at a “make-whole” redemption price. The “make-whole” redemption price will be equal to (1) 100% of the principal amount of the New Notes redeemed, plus (2) the excess, if any, of (x) the sum of the present values of the remaining scheduled payments of principal and interest on the New Notes being
redeemed (as if the New Notes matured on the New Notes Par Call Date, as defined below), discounted to the redemption date on a semi-annual basis (assuming a 360-day year of twelve 30-day months) at a rate equal to the sum of the Treasury Rate (as defined in the Indenture) plus 50 basis points, minus accrued and unpaid interest, if any, on the New Notes being redeemed to, but excluding, the redemption date over (y) the principal amount of the New Notes being redeemed, plus (3) accrued and unpaid interest, if any, on the New Notes being redeemed to, but excluding, the redemption date. At any time on or after March 1, 2029 (the “Notes Par Call Date”), the Company may redeem some or all of the New Notes at a redemption price equal to 100% of the principal amount of the New Notes redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.
Repurchase of New Notes upon a Change of Control Triggering Event
Not later than 30 days following a Change of Control Triggering Event (as defined in the Indenture) with respect to the New Notes, Seagate HDD must make an offer to purchase all outstanding New Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase.
Covenants
The New Notes will be subject to the covenants in the Indenture, which include limitations on liens, limitations on subsidiary debt, limitations on sale and lease-back transactions and limitations on consolidation, merger, and conveyance, transfer and lease of assets. Seagate HDD is not required to make any mandatory redemption or sinking fund payments with respect to the New Notes.
Events of Default
The Indenture also provides for customary events of default which, if any of them occurs, would permit or require the principal of and accrued interest on the New Notes governed by such Indenture to become or to be declared due and payable.
Registration Rights Agreement
The Registration Rights Agreement provides that, if any New Notes are not freely transferable by persons not affiliated with the Company or Seagate HDD (each, a “Registrable Security”) within 366 days after the original issuance date of the New Notes, the Company and Seagate HDD are required to consummate no later than 451 days after the original issuance date of the New Notes, an offer to exchange all Registrable Securities for a new issue of notes with terms substantially similar to the New Notes that will be registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to an effective Exchange Offer Registration Statement (as defined in the Registration Rights Agreement).
If the Company and Seagate HDD fail to comply with certain of their obligations under the Registration Rights Agreement with respect to any Registrable Security (each, a “Registration Default”), then additional interest will accrue on such Registrable Security at a per annum rate of 0.25% for the first 90 days following such Registration Default, with such additional interest to be increased by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum rate of 1.00% per annum, provided that all additional interest will cease to accrue on such Registrable Security upon the earlier of (1) the date on which all Registration Defaults with respect to such Registrable Security have been cured or (2) the date on which such Registrable Security becomes freely transferable by non-affiliates pursuant to Rule 144 under the Securities Act.
The description of the Registration Rights Agreement above is a summary and is qualified in its entirety by the Registration Rights Agreement, filed as Exhibit 4.3 to this Current Report on Form 8-K, which is incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth above under Item 1.01 is hereby incorporated by reference into this Item 2.03.
| Item 8.01 | Other Events. |
Early Tender Results Press Release
On June 16, 2020, the Company issued a press release announcing the early tender results for HDD Cayman’s previously announced cash tender offers for (i) up to an aggregate principal amount of $275,000,000 of HDD Cayman’s 4.250% Senior Notes due 2022 (the “2022 Notes”) and (ii) up to an aggregate principal amount of $225,000,000 of HDD Cayman’s 4.750% Senior Notes due 2023 (the “2023 Notes” and together with the 2022 Notes, the “Existing Notes”) up to a maximum aggregate principal amount of $500,000,000, from each registered holder of the Existing Notes. A copy of this press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
Early Exchange Results Press Release
On June 16, 2020, the Company issued a press release announcing the expiration of the early exchange period for the Exchange Offers. A copy of this press release is attached to this Current Report on Form 8-K as Exhibit 99.2 and is incorporated herein by reference.
Pricing of Exchange Offers and Acceptance of Tendered Notes Press Release
On June 17, 2020, the Company issued a press release announcing the pricing of the Exchange Offers. A copy of this press release is attached to this Current Report on Form 8-K as Exhibit 99.3 and is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit |
Description | |||
| 4.1 |
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| 4.2 |
Form of 4.091% Senior Note due 2029 (included in Exhibit 4.1). | |||
| 4.3 |
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| 99.1 |
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| 99.2 |
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| 99.3 |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
| SEAGATE TECHNOLOGY PUBLIC LIMITED COMPANY | ||
| By: |
/s/ Gianluca Romano | |
| Name: |
Gianluca Romano | |
| Title: |
Executive Vice President and Chief Financial Officer | |
Date: June 18, 2020
Exhibit 4.1
EXECUTION VERSION
SEAGATE HDD CAYMAN
as Issuer
SEAGATE TECHNOLOGY PLC
as Guarantor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of June 18, 2020
4.091% Senior Notes due 2029
CROSS-REFERENCE TABLE 1
| TIA Sections |
Indenture Sections | |||
| § 310 (a) |
7.10 | |||
| (b) |
7.08 | |||
| § 311 |
7.03 | |||
| § 312 |
11.02 | |||
| § 313 |
7.06 | |||
| § 314 (a) |
4.04 | |||
| (c) |
11.04 | |||
| (e) |
11.05 | |||
| § 315 (a) |
7.01, 7.02 | |||
| (b) |
7.02, 7.05 | |||
| (c) |
7.01 | |||
| (d) |
7.01, 7.02 | |||
| (e) |
6.13 | |||
| § 316 (a) |
2.05, 6.02, 6.11, 6.12 | |||
| (b) |
6.06, 6.07 | |||
| (c) |
11.02 | |||
| § 317 (a) (1) |
6.03 | |||
| (a) (2) |
6.04 | |||
| (b) |
2.03 | |||
| § 318 |
11.01 | |||
| 1 | Note: The Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture. |
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TABLE OF CONTENTS
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| ARTICLE 1 |
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| DEFINITIONS AND INCORPORATION BY REFERENCE |
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| Section 1.01 | Definitions | 1 | ||||
| Section 1.02 | Rules of Construction | 11 | ||||
| Section 1.03 | Incorporation by Reference of Trust Indenture Act | 12 | ||||
| ARTICLE 2 |
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| THE NOTES |
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| Section 2.01 | Form, Dating and Denominations | 12 | ||||
| Section 2.02 | Execution and Authentication; Exchange Notes; Additional Notes | 13 | ||||
| Section 2.03 | Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust | 14 | ||||
| Section 2.04 | Replacement Notes | 14 | ||||
| Section 2.05 | Outstanding Notes | 15 | ||||
| Section 2.06 | Temporary Notes | 15 | ||||
| Section 2.07 | Cancellation | 15 | ||||
| Section 2.08 | CUSIP Numbers | 16 | ||||
| Section 2.09 | Registration, Transfer and Exchange | 16 | ||||
| Section 2.10 | Restrictions on Transfer and Exchange | 18 | ||||
| Section 2.11 | Temporary Offshore Global Notes | 20 | ||||
| ARTICLE 3 |
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| REDEMPTION; OFFER TO PURCHASE |
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| Section 3.01 | Optional Redemption | 20 | ||||
| Section 3.02 | Method and Effect of Redemption | 20 | ||||
| Section 3.03 | Offer to Purchase | 22 | ||||
| ARTICLE 4 |
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| COVENANTS |
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| Section 4.01 | Payment of Notes | 24 | ||||
| Section 4.02 | Maintenance of Office or Agency | 24 | ||||
| Section 4.03 | Existence | 24 | ||||
| Section 4.04 | Reports and Delivery of Certain Information | 24 | ||||
| Section 4.05 | Payment of Taxes and Other Claims | 25 | ||||
| Section 4.06 | Maintenance of Properties and Insurance | 25 | ||||
| Section 4.07 | Limitation on Liens | 25 | ||||
| Section 4.08 | Limitation on Subsidiary Debt | 26 | ||||
| Section 4.09 | Limitation on Sale and Lease-Back Transactions | 27 | ||||
| Section 4.10 | Repurchase of Notes upon a Change of Control Triggering Event | 28 | ||||
| Section 4.11 | Reports to Trustee | 28 | ||||
| Section 4.12 | Additional Interest Notice | 28 | ||||
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| ARTICLE 5 |
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| CONSOLIDATION, MERGER OR SALE OF ASSETS |
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| Section 5.01 | The Company May Consolidate, Etc., Only on Certain Terms | 29 | ||||
| Section 5.02 | Parent May Consolidate, Etc., Only on Certain Terms | 30 | ||||
| Section 5.03 | Successor Substituted | 30 | ||||
| ARTICLE 6 |
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| DEFAULT AND REMEDIES |
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| Section 6.01 | Events of Default | 30 | ||||
| Section 6.02 | Acceleration of Maturity; Rescission and Annulment | 31 | ||||
| Section 6.03 | Collection of Indebtedness and Suits for Enforcement by Trustee | 32 | ||||
| Section 6.04 | Trustee May File Proofs of Claim | 32 | ||||
| Section 6.05 | Application of Money Collected | 32 | ||||
| Section 6.06 | Limitation on Suits | 33 | ||||
| Section 6.07 | Unconditional Right of Holders to Receive Payment | 33 | ||||
| Section 6.08 | Restoration of Rights and Remedies | 33 | ||||
| Section 6.09 | Rights and Remedies Cumulative | 34 | ||||
| Section 6.10 | Delay or Omission Not Waiver | 34 | ||||
| Section 6.11 | Control by Holders | 34 | ||||
| Section 6.12 | Waiver of Past Defaults | 34 | ||||
| Section 6.13 | Undertaking for Costs | 34 | ||||
| Section 6.14 | Waiver of Stay or Extension Laws | 35 | ||||
| ARTICLE 7 |
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| THE TRUSTEE |
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| Section 7.01 | General | 35 | ||||
| Section 7.02 | Certain Rights of Trustee | 35 | ||||
| Section 7.03 | Individual Rights of Trustee | 37 | ||||
| Section 7.04 | Trustee’s Disclaimer | 37 | ||||
| Section 7.05 | Notice of Default | 37 | ||||
| Section 7.06 | Reports by Trustee to Holders | 37 | ||||
| Section 7.07 | Compensation and Indemnity | 37 | ||||
| Section 7.08 | Replacement of Trustee | 38 | ||||
| Section 7.09 | Successor Trustee by Merger | 39 | ||||
| Section 7.10 | Eligibility | 39 | ||||
| Section 7.11 | Money Held in Trust | 39 | ||||
| ARTICLE 8 |
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| DEFEASANCE AND DISCHARGE |
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| Section 8.01 | Defeasance and Discharge of Indenture | 39 | ||||
| Section 8.02 | Legal Defeasance | 40 | ||||
| Section 8.03 | Covenant Defeasance | 41 | ||||
| Section 8.04 | Application by Trustee of Funds Deposited for Payment of Notes | 41 | ||||
| Section 8.05 | Repayment of Moneys Held by Paying Agent | 41 | ||||
| Section 8.06 | Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years | 42 | ||||
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| ARTICLE 9 |
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| AMENDMENTS, SUPPLEMENTS AND WAIVERS |
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| Section 9.01 | Supplemental Indentures without Consent of Holders | 42 | ||||
| Section 9.02 | Supplemental Indentures with Consent of Holders | 43 | ||||
| Section 9.03 | Execution of Supplemental Indentures | 44 | ||||
| Section 9.04 | Effect of Supplemental Indentures | 44 | ||||
| Section 9.05 | Conformity with Trust Indenture Act | 44 | ||||
| Section 9.06 | Reference in Notes to Supplemental Indentures | 44 | ||||
| ARTICLE 10 |
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| PARENT GUARANTEE |
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| Section 10.01 | Parent Guarantee | 45 | ||||
| Section 10.02 | Successors and Assigns | 46 | ||||
| Section 10.03 | No Waiver | 46 | ||||
| Section 10.04 | Modification | 46 | ||||
| Section 10.05 | Release of Parent Guarantor and Termination of Parent Guarantee | 46 | ||||
| ARTICLE 11 |
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| MISCELLANEOUS |
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| Section 11.01 | Trust Indenture Act of 1939 | 47 | ||||
| Section 11.02 | Noteholder Communications; Noteholder Actions | 47 | ||||
| Section 11.03 | Notices | 47 | ||||
| Section 11.04 | Certificate and Opinion as to Conditions Precedent | 48 | ||||
| Section 11.05 | Statements Required in Certificate or Opinion | 49 | ||||
| Section 11.06 | Payment Date Other Than a Business Day | 49 | ||||
| Section 11.07 | Governing Law; Waiver of Jury Trial | 49 | ||||
| Section 11.08 | No Adverse Interpretation of Other Agreements | 49 | ||||
| Section 11.09 | Successors | 49 | ||||
| Section 11.10 | Duplicate Originals | 49 | ||||
| Section 11.11 | Separability | 50 | ||||
| Section 11.12 | Table of Contents and Headings | 50 | ||||
| Section 11.13 | No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders | 50 | ||||
| Section 11.14 | Consent to Jurisdiction; Appointment of Agent for Service of Process | 50 | ||||
| Section 11.15 | Force Majeure | 51 | ||||
| Section 11.16 | U.S.A. PATRIOT Act | 51 | ||||
| Section 11.17 | Judgment Currency | 51 | ||||
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| EXHIBITS | ||
| EXHIBIT A | Form of Note | |
| EXHIBIT B | Form of Supplemental Indenture | |
| EXHIBIT C | Restricted Legend | |
| EXHIBIT D | DTC Legend | |
| EXHIBIT E | Regulation S Certificate | |
| EXHIBIT F | Rule 144A Certificate | |
| EXHIBIT G | Institutional Accredited Investor Certificate | |
| EXHIBIT H | Certificate of Beneficial Ownership | |
| EXHIBIT I | Temporary Offshore Global Note Legend |
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INDENTURE, dated as of June 18, 2020, among SEAGATE HDD CAYMAN, an exempted company incorporated with limited liability under the laws of the Cayman Islands, as issuer (the “Company”), SEAGATE TECHNOLOGY plc, a public limited company organized under the laws of Ireland, as guarantor (the “Parent”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of up to $500,000,000 aggregate principal amount of the Company’s 4.091% Senior Notes due 2029 as provided herein (the “Initial Notes”, and together with the Exchange Notes and the Additional Notes, the “Notes”). All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company has done all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
In addition, the Parent has duly authorized the execution and delivery of this Indenture as guarantor of the Notes. All things necessary to make this Indenture a valid agreement of the Parent, in accordance with its terms, have been done, and the Parent has done all things necessary to make the Parent Guarantee (as defined below), when the Notes are executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of Parent as hereinafter provided.
Initially, this Indenture shall not be qualified under the Trust Indenture Act. If this Indenture is later qualified under the Trust Indenture Act, then this Indenture will be subject to, and will be governed by, the provisions of the Trust Indenture Act that are required to be made a part of and govern indentures qualified under the Trust Indenture Act.
THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“act” has the meaning assigned to such term in Section 11.02.
“Additional Interest” means additional interest owed to the Holders pursuant to the Registration Rights Agreement.
“Additional Notes” means notes in an unlimited amount issued from time to time under this Indenture in addition to the $500,000,000 aggregate principal amount of the Notes originally issued hereunder, having the same terms in all respects as the Notes hereunder (other than (i) the payment of interest accruing prior to the issue date of such Additional Notes and (ii) the first payment of interest following the issue date of such Additional Notes).
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“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means any Registrar, Paying Agent or Authenticating Agent.
“Agent Member” means a member of, or a participant in, the Depositary.
“Aggregate Debt” means the sum of the following as of the date of determination, without duplication: (i) the sum of the then outstanding aggregate principal amount of Indebtedness of the Company and its Consolidated Subsidiaries, without duplication, incurred after the Issue Date and secured by Liens not permitted under Section 4.07(a); (ii) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date, without duplication, and not permitted under the second paragraph of Section 4.08(a); and (iii) the then existing Attributable Liens of the Company and its Consolidated Subsidiaries in respect of sale and lease-back transactions, without duplication, entered into after the Issue Date pursuant to Section 4.09(b). Whenever a calculation is to be made with respect to creation or incurrence under revolving credit Indebtedness, such calculation may at the Company’s option be determined by treating the maximum committed amount of such revolving credit Indebtedness as having been incurred on the date of such calculation, whether or not such amount has actually been drawn upon, and, if such election has been made, (i) subsequent borrowings and reborrowings of such revolving credit Indebtedness (and related Liens), up to the maximum committed amount, shall not be deemed additional incurrences of Indebtedness (and related Liens) requiring calculations of the amount of Aggregate Debt (but subsequent borrowings in connection with increases in such maximum committed amount shall require calculations under this definition, or shall otherwise comply with Section 4.07, Section 4.08 and Section 4.09, as applicable), and (ii) for purposes of subsequent calculations under this definition, the maximum committed amount of such revolving credit Indebtedness on the date of any such calculation shall be deemed to be outstanding throughout such period, whether or not such amount is actually outstanding.
“Attributable Liens” means, in connection with a sale and lease-back transaction, the lesser of: (i) the fair market value of the assets subject to such transaction, as determined in good faith by the Company’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Company may terminate the lease.
“Authenticating Agent” refers to a Person engaged to authenticate the Notes in the stead of the Trustee.
“Authorized Agent” has the meaning set forth in Section 11.14.
“Board of Directors” means the Board of Directors of the Company, or any committee thereof duly authorized to act on behalf of such Board.
“Board Resolution” means a resolution duly adopted by the Board of Directors which is certified by the Secretary or an Assistant Secretary of the Company or the Parent, as applicable, and remains in full force and effect as of the date of its certification.
“Business Day” means each day which is not a Legal Holiday.
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“Capital Lease” means any Indebtedness represented by a lease obligation of a Person incurred with respect to real property or equipment acquired or leased by such Person and used in its business that is required to be recorded as a capital lease in accordance with GAAP as in effect on the Issue Date.
“Capital Stock” means, with respect to any Person, any and all shares or shares of stock of a corporation or company, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.
“cash transaction” has the meaning assigned to such term in section 7.03.
“Certificate of Beneficial Ownership” means a certificate substantially in the form of Exhibit H.
“Certificated Note” means a Note in registered individual form without interest coupons.
“Change of Control ” means:
(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) (other than, in the case of the Company, Parent and any of its Wholly Owned Subsidiaries), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or the Parent (for purposes of this clause (1), a person shall be deemed to beneficially own any Voting Stock of a person (the “ specified person ”) held by any other person (the “parent entity ”) so long as such person is the beneficial owner (as defined in this clause (1)), directly or indirectly, of more than 50% of the voting power of the Voting Stock of the parent entity); provided, however, that a transaction will not be deemed to involve a Change of Control under this clause (1) if (a) the Company or the Parent becomes a direct or indirect wholly owned subsidiary of a holding company, and (b)(i) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Parent’s Voting Stock immediately prior to that transaction or (ii) immediately following that transaction no “person” or “group” (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company;
(2) the adoption of a plan relating to the liquidation or dissolution of the Company or the Parent; or
(3) the merger or consolidation of the Company or the Parent with or into another Person or the merger of another Person with or into the Company or the Parent, or the sale of all or substantially all the assets of the Company or the Parent (determined on a consolidated basis) to another Person (other than the Company or any of its Subsidiaries), other than a transaction following which, in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Company or the Parent immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and in substantially the same proportion as before the transaction.
“Change of Control Triggering Event” means the occurrence of (x) a Change of Control that is accompanied or followed by a downgrade of the Notes within the Ratings Decline Period by each of Moody’s and S&P (or, in the event S&P or Moody’s or both shall cease rating the Notes (for reasons outside the
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control of the Company or the Parent) and the Company shall select any other Rating Agency, the equivalent of such ratings by such other Rating Agency) and (y) the rating of the Notes on any day during such Ratings Decline Period is below the lower of the rating by such Rating Agency in effect (i) immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement) and (ii) the Issue Date.
“Clearstream” means Clearstream Banking, Société Anonyme, Luxembourg and any successor thereto.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the U.S. Securities and Exchange Commission.
“Company” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to Article 5.
“Comparable Treasury Issue” means the United States Treasury security selected by a Reference Treasury Dealer (as defined herein) as having an actual or interpolated maturity comparable to the remaining term of the Notes (as if the Notes matured on the Par Call Date) that are called for redemption, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of Notes called for redemption (as if the Notes matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average, as determined by the Company, of the Reference Treasury Dealer Quotations for that Redemption Date.
“Consolidated Net Worth” means, as of any date of determination, the Shareholders’ Equity of the Company and its Consolidated Subsidiaries on that date.
“Consolidated Subsidiaries” means, as of any date of determination and with respect to any Person, those Subsidiaries of that Person whose financial data is, in accordance with GAAP, reflected in that Person’s consolidated financial statements.
“Corporate Trust Office” means the office of the Trustee specified in Section 11.03 hereof or such other address as to which the Trustee may give notice to the Company. With respect to registration for transfer or exchange, presentation at maturity or for redemptions, such office shall also mean the office or agency of the Trustee located at the date hereof at Corporate Trust Operations, MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415.
“Deemed Capital Leases” means obligations of a Person that are classified as “capital lease obligations” under GAAP due to the application of ASC Topic 842 or any subsequent pronouncement having similar effect and, except for such regulation or pronouncement, such obligation would not constitute a Capital Lease.
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means the depositary of each Global Note, which will initially be DTC.
“DTC” means The Depository Trust Company, a New York corporation, and any successor thereto.
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“DTC Legend” means the legend set forth in Exhibit D.
“Euroclear” means the Euroclear Bank, S.A/N.V., as operator of the Euroclear System and any successor thereto.
“Event of Default” has the meaning assigned to such term in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means (i) Exchange Securities as defined in the Registration Rights Agreement and (ii) any Notes not bearing a Restrictive Legend issued upon cancellation of Initial Notes or Initial Additional Notes when the applicable Restricted Period has elapsed.
“Exchange Offer” means an offer by the Company to the Holders of the Initial Notes or any Initial Additional Notes to exchange outstanding Notes for Exchange Notes, as provided for in the Registration Rights Agreement.
“Exchange Offer Registration Statement” means the Exchange Offer Registration Statement as defined in the Registration Rights Agreement.
“expiration date” has the meaning assigned to such term in Section 3.03.
“GAAP” means generally accepted accounting principles set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, in each case, which are in effect as of the date of determination without giving effect to the application to any Deemed Capital Lease of ASC Topic 842 or any subsequent pronouncement having similar effect.
“Global Note” means a Note in registered global form without interest coupons.
“Governmental Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are on arm’s-length terms and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial statement conditions or otherwise) or (2) entered
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into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 10.01(b).
“Guarantor” means Parent, or any successor obligor under the Parent Guarantee pursuant to Article 5, and each entity that, pursuant to Section 4.08(c), executes a supplemental indenture to this Indenture providing for the Guarantee of the payment of the Notes, in each case unless and until such Guarantor is released from its Note Guarantee pursuant to this Indenture.
“Holder” or “Noteholder” means the registered holder of any Note.
“Indebtedness” of any specified Person means any indebtedness in respect of borrowed money, provided, that no Deemed Capital Lease obligation shall be considered Indebtedness.
“Indenture” means this indenture, as amended or supplemented from time to time.
“Initial Additional Notes” means Additional Notes issued in an offering not registered under the Securities Act and any Notes issued in replacement thereof, but not including any Exchange Notes issued in exchange therefor.
“Initial Notes” means the Notes issued on the Issue Date and any Notes issued in replacement thereof, but not including any Exchange Notes issued in exchange therefor.
“Initial Purchasers” means the initial purchasers party to a purchase agreement with the Company and the Parent relating to the sale of the Notes by the Company.
“interest”, in respect of the Notes, unless the context otherwise requires, refers to interest and Additional Interest, if any.
“Interest Payment Date” means each June 1 and December 1 of each year, commencing December 1, 2020.
“Issue Date” means June 18, 2020.
“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or in the place of payment.
“Lien” means any lien, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Note Guarantee” means the guarantee of the Notes by a Guarantor pursuant to this Indenture.
“Notes” has the meaning assigned to such term in the Recitals.
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“offer” has the meaning assigned to such term in Section 3.03.
“Offer to Purchase” has the meaning assigned to such term in Section 3.03.
“Officer” means the chairperson of the board of directors, if any, a director, the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, of the Company.
“Officers’ Certificate” means a certificate signed in the name of the Company or the Parent, as applicable, (i) by the chairperson of its board of directors, if any, a director, its president or chief executive officer or any vice president and (ii) by its chief financial officer, treasurer or any assistant treasurer or secretary or any assistant secretary.
“Offshore Global Note” means a Global Note representing Notes issued and sold pursuant to Regulation S.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Parent or the Company, which is satisfactory to the Trustee.
“Original Notes” means the Initial Notes and any Exchange Notes issued in exchange therefor.
“Par Call Date” means March 1, 2029.
“Parent” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to Article 5.
“Parent Guarantee” means the guarantee by the Parent of the Company’s obligations with respect to the Notes.
“Paying Agent” refers to a Person engaged to perform the obligations of the Trustee in respect of payments made or funds held hereunder in respect of the Notes.
“Permanent Offshore Global Note” means an Offshore Global Note that does not bear the Temporary Offshore Global Note Legend.
“Permitted Bank Indebtedness” means any Indebtedness of Parent or any Subsidiary of Parent pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by Parent or any Subsidiary of Parent; provided that the aggregate principal amount at any time outstanding does not exceed $1.5 billion.
“Permitted Liens” means:
(a) Liens existing on the Issue Date other than Liens securing Permitted Bank Indebtedness;
(b) Liens securing Permitted Bank Indebtedness;
(c) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
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(d) (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any Principal Property at the time of acquisition thereof or at the time of acquisition by the Company of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(e) pre-existing Liens on assets acquired after the Issue Date;
(f) Liens in favor of the Parent, the Company or a Subsidiary of the Company;
(g) purchase money Liens or purchase money security interests upon or in any Principal Property acquired or held by the Company in the ordinary course of business to secure the purchase price of such Principal Property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such Principal Property;
(h) Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(i) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens, in each case for sums not yet overdue by more than 30 calendar days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(j) Liens for taxes, assessments or other governmental charges not yet due or payable or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(k) Liens to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(l) licenses of intellectual property of the Company and its Subsidiaries granted in the ordinary course of business or otherwise; or
(m) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the clauses (a) to (l), inclusive.
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“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal” of any Indebtedness means the principal amount of such Indebtedness, (or if such Indebtedness was issued with original issue discount, the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness), together with, unless the context otherwise indicates, any premium then payable on such Indebtedness.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the Capital Stock in and other securities of any other Person), except such as the Company’s Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Company and its Consolidated Subsidiaries taken as a whole) not to be material to the business of the Company and its Consolidated Subsidiaries, taken as a whole.
“purchase amount” has the meaning assigned to such term in Section 3.03.
“purchase date” has the meaning assigned to such term in Section 3.03.
“Rating Agency” means a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors of the Company) which shall be substituted for S&P or Moody’s, or both, as the case may be.
“Ratings Decline Period” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Company or a shareholder of the Company, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 60 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Notes, as noted by the applicable rating agency, is under publicly announced consideration for downgrade by the applicable rating agency.
“Redemption Date” shall mean the date specified for redemption of the Notes in accordance with the terms of Section 3.01.
“Reference Treasury Dealer” means Morgan Stanley & Co. LLC, BofA Securities, Inc. and three other primary U.S. Government securities dealers selected by the Company, and each of their respective successors. If any of the foregoing shall cease to be a primary U.S. Government securities dealer, the Company will substitute another nationally recognized investment banking firm that is a primary U.S. Government securities dealer.
“Reference Treasury Dealer Quotations” means, on any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by each Reference Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding that Redemption Date.
“Register” has the meaning assigned to such term in Section 2.09.
“Registrar” means a Person engaged to maintain the Register.
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“Registration Rights Agreement” means (i) the Registration Rights Agreement dated on or about the Issue Date among the Company, Parent and the Initial Purchasers party thereto with respect to the Initial Notes, and (ii) with respect to any Additional Notes, any registration rights agreements among the Company, Parent and the Initial Purchasers party thereto relating to rights given by the Company and the Parent to the purchasers of Additional Notes to register such Additional Notes or exchange them for Notes registered under the Securities Act.
“Regular Record Date” for the interest payable on any Interest Payment Date means the May 15 or November 15 (whether or not a Business Day) next preceding such Interest Payment Date.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form of Exhibit E hereto.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Legend” means the legend set forth in Exhibit C.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Certificate” means (i) a certificate substantially in the form of Exhibit F hereto or (ii) a written certification addressed to the Company and the Trustee stating that the Person making such certification (x) is acquiring such Note (or beneficial interest) for its own account or one or more accounts with respect to which it exercises sole investment discretion and that it and each such account is a “qualified institutional buyer” within the meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A, and (z) acknowledges that it has received such information regarding the Parent as it has requested pursuant to Rule 144A(d)(4) or has determined not to request such information.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc. and its successors.
“Securities Act” means the Securities Act of 1933, as amended.
“self-liquidating paper” has the meaning assigned to such term in Section 7.03.
“Senior Officer” of any specified Person means the chief executive officer, any president, any vice president, the chief financial officer, the treasurer, any assistant treasurer, the secretary or any assistant secretary.
“Shareholders’ Equity” of a Person means, as of any date of determination, shareholders’ equity as reflected on such Person’s most recent consolidated balance sheet prepared in accordance with GAAP.
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“Significant Subsidiary” has the meaning set forth in Regulation S-X, promulgated by the Commission, as may be amended from time to time.
“Stated Maturity” means (i) with respect to any Indebtedness, the date specified as the fixed date on which the final installment of principal of such Indebtedness is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Indebtedness, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Indebtedness, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.
“Subsidiary” of a Person means a corporation, partnership, limited liability company or other similar entity a majority of whose Voting Stock is owned by such Person or a Subsidiary of such Person.
“Temporary Offshore Global Note” means an Offshore Global Note that bears the Temporary Offshore Global Note Legend.
“Temporary Offshore Global Note Legend” means the legend set forth in Exhibit I.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third Business Day immediately preceding that Redemption Date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means the party named as such in the first paragraph of this Indenture or any successor trustee under this Indenture pursuant to Article 7.
“U.S. Global Note” means a Global Note that bears the Restricted Legend representing Notes issued and sold pursuant to Rule 144A.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“Wholly Owned” means, with respect to any Subsidiary, a Subsidiary all of the outstanding Capital Stock of which (other than any director’s qualifying shares) is owned by Parent and one or more Wholly Owned Subsidiaries (or a combination thereof) of Parent.
Section 1.02 Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided,
(1) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(2) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Section, Article or other subdivision;
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(3) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Indenture unless otherwise indicated;
(4) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations); and
(5) in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions the Company may classify such transaction as it, in its sole discretion, determines.
Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, as applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture. To the extent of such incorporation, the following Trust Indenture Act terms used in connection with this Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the Parent Guarantee means the Company and Parent, respectively, and any successor obligor upon the Notes and the Parent Guarantee, respectively.
ARTICLE 2
THE NOTES
Section 2.01 Form, Dating and Denominations. (a) The Notes and the Trustee’s certificate of authentication will be substantially in the form attached as Exhibit A. The terms and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby expressly made, a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules of or agreements with national securities exchanges to which the Company is subject, or usage. Each Note will be dated the date of its authentication. The Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) (1) Except as otherwise provided in paragraph (c), Section 2.09(b)(4), or Section 2.10(b)(3), (b)(5) or (c), each Initial Note or Initial Additional Note (other than a Permanent Offshore Global Note) will bear the Restricted Legend.
(2) Each Global Note, whether or not an Initial Note or Additional Note, will bear the DTC Legend.
(3) Each Temporary Offshore Global Note will bear the Temporary Offshore Global Note Legend.
(4) Initial Notes and Initial Additional Notes offered and sold in reliance on Regulation S will be issued as provided in Section 2.11(a).
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(5) Initial Notes and Initial Additional Notes offered and sold in reliance on any exception under the Securities Act other than Regulation S and Rule 144A will be issued, and upon the request of the Company to the Trustee, Notes offered and sold in reliance on Rule 144A may be issued, in the form of Certificated Notes.
(6) Exchange Notes will be issued, subject to Section 2.09(b), in the form of one or more Global Notes.
(7) Notes sold or transferred to Affiliates shall be issued in the form of Certificated Notes.
(c) (1) When the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that a Note is eligible (without limits) for resale pursuant to Rule 144 under the Securities Act (or a successor provision) and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of the Note (or a beneficial interest therein) are effected in compliance with the Securities Act, or (2) after an Initial Note or any Initial Additional Note is (x) sold pursuant to an effective registration statement under the Securities Act (pursuant to the Registration Rights Agreement or otherwise), or (y) validly tendered for exchange into an Exchange Note pursuant to an Exchange Offer, the Company shall instruct in writing the Trustee to cancel the Notes and issue to the non-Affiliate Holders thereof (or to their transferees) new Notes of like tenor and amount, registered in the name of the Holder thereof (or to their transferees), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.
(d) By its acceptance of any Note bearing the Restricted Legend (or any beneficial interest in such a Note), each Holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Note (and any such beneficial interest) set forth in this Indenture and in the Restricted Legend and agrees that it will transfer such Note (and any such beneficial interest) only in accordance with this Indenture and such legend.
Section 2.02 Execution and Authentication; Exchange Notes; Additional Notes. (a) An Officer shall execute the Notes for the Company by facsimile or manual signature in the name and on behalf of the Company. If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note will nevertheless be valid.
(b) A Note will not be valid until the Trustee manually signs the certificate of authentication on the Note, with the signature conclusive evidence that the Note has been authenticated under this Indenture.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication. The Trustee will authenticate and deliver:
(i) Initial Notes for original issue in the aggregate principal amount not to exceed $500,000,000,
(ii) Additional Notes from time to time for original issue in aggregate principal amounts specified by the Company, and
(iii) Exchange Notes from time to time for issue in exchange for a like principal amount of Initial Notes or Initial Additional Notes, after the following conditions have been met:
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(1) Receipt by the Trustee of a written order from the Company signed by an Officer specifying:
(A) the amount of Notes to be authenticated and the date on which the Notes are to be authenticated,
(B) whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes,
(C) whether the Notes are to be issued as one or more Global Notes or Certificated Notes, and
(D) other information the Company may determine to include or the Trustee may reasonably request.
(2) In the case of Additional Notes, if such Additional Notes are not fungible with the Original Notes for U.S. federal income tax purposes, then such Additional Notes shall have a separate CUSIP number from the Original Notes.
(3) In the case of Exchange Notes issued in an Exchange Offer, effectiveness of an Exchange Offer Registration Statement and consummation of the Exchange Offer thereunder (and receipt by the Trustee of an Officers’ Certificate to that effect). Initial Notes or Initial Additional Notes exchanged for Exchange Notes will be cancelled by the Trustee.
Section 2.03 Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust. (a) The Company may appoint one or more Registrars and one or more Paying Agents, and the Trustee may appoint an Authenticating Agent, in which case each reference in this Indenture to the Trustee in respect of the obligations of the Trustee to be performed by that Agent will be deemed to be references to the Agent. The Company may act as Registrar or (except for purposes of Article 8) Paying Agent. In each case the Company and the Trustee will enter into an appropriate agreement with the Agent implementing the provisions of this Indenture relating to the obligations of the Trustee to be performed by the Agent and the related rights. The Company initially appoints the Trustee as Registrar and Paying Agent.
(b) The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of and interest on the Notes and will promptly notify the Trustee in writing of any default by the Company in making any such payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require the Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent will have no further liability for the money so paid over to the Trustee.
Section 2.04 Replacement Notes. If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken, the Company will issue and the Trustee will authenticate a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. Every replacement Note is an additional obligation of the Company and entitled to the benefits of this Indenture. The requesting Holder must furnish an indemnity that is sufficient in the judgment of both the Trustee and the Company to protect the Company and the Trustee from any loss they may suffer if a Note is replaced. The Company may charge the Holder for the expenses of the Company and the Trustee in replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Company in its discretion may pay the Note instead of issuing a replacement Note.
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Section 2.05 Outstanding Notes. (a) Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for:
(1) Notes cancelled by the Trustee or delivered to it for cancellation;
(2) any Note which has been paid pursuant to Section 2.04 and any Note which has been replaced pursuant to Section 2.04 unless and until the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser; and
(3) on or after the maturity date or any Redemption Date or date for purchase of the Notes pursuant to an Offer to Purchase, those Notes payable or to be redeemed or purchased on that date for which the Trustee (or Paying Agent, other than the Company or an Affiliate of the Company) holds money sufficient to pay all amounts then due.
(b) A Note does not cease to be outstanding because the Company or one of its Affiliates holds the Note, provided that in determining whether the Holders of the requisite principal amount of the outstanding Notes have given or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, Notes owned by the Company or any Affiliate of the Company will be disregarded and deemed not to be outstanding, (it being understood that in determining whether the Trustee is protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Notes which a Responsible Officer of the Trustee actually knows to be so owned will be so disregarded). Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company or any Affiliate of the Company.
Section 2.06 Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officer executing the temporary Notes, as evidenced by the execution of the temporary Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company designated for the purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any temporary Notes the Company will execute and the Trustee will authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes will be entitled to the same benefits under this Indenture as definitive Notes.
Section 2.07 Cancellation. The Company at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold. Any Registrar or the Paying Agent will forward to the Trustee any Notes surrendered to it for transfer, exchange or payment. The Trustee will cancel all Notes surrendered for transfer, exchange, payment or cancellation and dispose of them in accordance with its normal procedures. The Company may not issue new Notes to replace Notes it has paid in full or delivered to the Trustee for cancellation.
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Section 2.08 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers, and the Trustee will use CUSIP numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders, the notice to state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange or Offer to Purchase. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
Section 2.09 Registration, Transfer and Exchange. (a) The Notes will be issued in registered form only, without coupons, and the Company shall cause the Trustee to maintain a register (the “Register”) of the Notes, for registering the record ownership of the Notes by the Holders and transfers and exchanges of the Notes.
(b) (1) Each Global Note will be registered in the name of the Depositary or its nominee and, so long as DTC is serving as the Depositary thereof, will bear the DTC Legend.
(2) Each Global Note will be delivered to the Trustee as custodian for the Depositary. Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to the Depositary, its successors or their respective nominees, except (i) as set forth in Section 2.09(b)(4) and (ii) transfers of portions thereof in the form of Certificated Notes may be made upon request of an Agent Member (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section and Section 2.10.
(3) Agent Members will have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Note through an Agent Member) to take any action which a Holder is entitled to take under this Indenture or the Notes, and nothing herein will impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any security.
(4) If (x) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for a Global Note and a successor depositary is not appointed by the Company within 90 days of the notice or (y) an Event of Default has occurred and is continuing and the Trustee has received a request from the Depositary, the Trustee will promptly exchange each beneficial interest in the Global Note for one or more Certificated Notes in authorized denominations having an equal aggregate principal amount registered in the name of the owner of such beneficial interest, as identified to the Trustee by the Depositary, and thereupon the Global Note will be deemed canceled. If such Note does not bear the Restricted Legend, then the Certificated Notes issued in exchange therefor will not bear the Restricted Legend. If such Note bears the Restricted Legend, then the Certificated Notes issued in exchange therefor will bear the Restricted Legend, provided that any Holder of any such Certificated Note issued in exchange for a beneficial interest in a Temporary Offshore Global Note will have the right upon presentation to the Trustee of a duly completed Certificate of Beneficial Ownership after the Restricted Period to exchange such Certificated Note for a Certificated Note of like tenor and amount that does not bear the Restricted Legend, registered in the name of such Holder.
(c) Each Certificated Note will be registered in the name of the Holder thereof or its nominee.
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(d) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by Section 2.10. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section by noting the same in the register maintained by the Trustee for the purpose; provided that:
(x) no transfer or exchange will be effective until it is registered in such register; and
(y) neither the Company nor the Trustee will be required (i) to issue, register the transfer of or exchange any Note for a period beginning at the opening of business 15 calendar days before the Company sends a notice of redemption of Notes to be redeemed or makes an Offer to Purchase and ending at the close of business on the day such notice of redemption is sent or such Offer to Purchase is made, (ii) to register the transfer of or exchange of any Note so selected for redemption or subject to purchase in such Offer to Purchase in whole or in part, except, in the case of a partial redemption or purchase, that portion of any Note not being redeemed or subject to purchase, or (iii) if a redemption or a purchase pursuant to an Offer to Purchase is to occur after a Regular Record Date but on or before the corresponding Interest Payment Date, to register the transfer of or exchange any Note on or after the Regular Record Date and before the date of such redemption or purchase. Prior to the registration of any transfer, the Company, the Trustee and their agents will treat the Person in whose name the Note is registered as the owner and Holder thereof for all purposes (whether or not the Note is overdue), and will not be affected by notice to the contrary.
From time to time the Company will execute and the Trustee will authenticate additional Notes as necessary in order to permit the registration of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any transfer or exchange of any Note, but the Company or the Parent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than a transfer tax or other similar governmental charge payable upon exchange pursuant to subsection (b)(4)).
(e) (1) Global Note to Global Note . If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Trustee will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2) Global Note to Certificated Note . If a beneficial interest in a Global Note is transferred or exchanged for a Certificated Note, the Trustee will (x) record a decrease in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (y) deliver one or more new Certificated Notes in authorized denominations having an equal aggregate principal amount to the transferee (in the case of a transfer) or the owner of such beneficial interest (in the case of an exchange), registered in the name of such transferee or owner, as applicable.
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(3) Certificated Note to Global Note. If a Certificated Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Certificated Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.
(4) Certificated Note to Certificated Note . If a Certificated Note is transferred or exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated Note being transferred or exchanged, (y) deliver one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Certificated Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.
Section 2.10 Restrictions on Transfer and Exchange. (a) The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section and Section 2.09 and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of the Depositary, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not conform to the applicable certificate attached as an exhibit hereto. Subject to Section 2.04, Certificated Notes must be presented in connection with a transfer.
(b) Subject to paragraph (c), the transfer or exchange of any Note (or a beneficial interest therein) of the type set forth in column A below for a Note (or a beneficial interest therein) of the type set forth opposite in column B below may only be made in compliance with the certification requirements (if any) described in the clause of this paragraph set forth opposite in column C below.
| A | B |
C | ||
| U.S. Global Note |
U.S. Global Note | (1) | ||
| U.S. Global Note |
Offshore Global Note | (2) | ||
| U.S. Global Note |
Certificated Note | (3) | ||
| Offshore Global Note |
U.S. Global Note | (4) | ||
| Offshore Global Note |
Offshore Global Note | (1) | ||
| Offshore Global Note |
Certificated Note | (5) | ||
| Certificated Note |
U.S. Global Note | (4) | ||
| Certificated Note |
Offshore Global Note | (2) | ||
| Certificated Note |
Certificated Note | (3) |
| (1) | No certification is required. |
| (2) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Registrar a duly completed Regulation S Certificate; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted Legend, then no certification is required. |
| (3) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Registrar (x) a duly completed Rule 144A Certificate, (y) a duly completed Regulation S Certificate or (z) a duly completed Institutional Accredited Investor Certificate, and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer or exchange is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted |
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| Legend, then no certification is required. In the event that (i) the requested transfer or exchange takes place after the Restricted Period and a duly completed Regulation S Certificate is delivered to the Registrar or (ii) a Certificated Note that does not bear the Restricted Legend is surrendered for transfer or exchange, upon transfer or exchange the Trustee will deliver a Certificated Note that does not bear the Restricted Legend. |
| (4) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Registrar a duly completed Rule 144A Certificate. |
| (5) | Notwithstanding anything to the contrary contained herein, no such exchange is permitted if the requested exchange involves a beneficial interest in a Temporary Offshore Global Note. If the requested transfer involves a beneficial interest in a Temporary Offshore Global Note, the Person requesting the transfer must deliver or cause to be delivered to the Registrar a duly completed (x) Rule 144A Certificate or (y) a duly completed Institutional Accredited Investor Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Parent may reasonably require in order to determine that the proposed transfer is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States. If the requested transfer or exchange involves a beneficial interest in a Permanent Offshore Global Note, no certification is required and the Trustee will deliver a Certificated Note that does not bear the Restricted Legend. |
(c) No certification is required in connection with any transfer or exchange of any Note (or a beneficial interest therein):
(1) after such Note is eligible for resale pursuant to Rule 144 under the Securities Act (or a successor provision); provided that the Company may require from any Person requesting a transfer or exchange in reliance upon this Section 2.10(c) an opinion of counsel and any other reasonable certifications and evidence in order to support such certificate; or
(2) (x) sold pursuant to an effective registration statement (pursuant to the Registration Rights Agreement or otherwise) or (y) which is validly tendered for exchange into an Exchange Note pursuant to an Exchange Offer.
Any Certificated Note delivered in reliance upon this paragraph will not bear the Restricted Legend.
(d) The Trustee and the Registrar will retain copies of all certificates, opinions and other documents received in connection with the transfer or exchange of a Note (or a beneficial interest therein), and the Company will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Trustee.
(e) Each Holder of a Note agrees to indemnify the Company, the Guarantors, the Trustee and the Registrar against any liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law.
(f) Neither the Trustee nor the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) 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.
(g) Neither the Trustee nor any Agent Member shall have any responsibility for any actions taken or not taken by the Depositary.
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Section 2.11 Temporary Offshore Global Notes. (a) Each Note originally sold by the Initial Purchasers in reliance upon Regulation S will be evidenced by one or more Offshore Global Notes that bear the Temporary Offshore Global Note Legend.
(b) An owner of a beneficial interest in a Temporary Offshore Global Note (or a Person acting on behalf of such an owner) may provide to the Registrar (and the Registrar will accept) a duly completed Certificate of Beneficial Ownership at any time after the Restricted Period. Promptly after acceptance of a Certificate of Beneficial Ownership with respect to such a beneficial interest, the Trustee will cause such beneficial interest to be exchanged for an equivalent beneficial interest in a Permanent Offshore Global Note, and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.
(c) Notwithstanding paragraph (b), if after the Restricted Period any Initial Purchaser owns a beneficial interest in a Temporary Offshore Global Note, such Initial Purchaser may, upon written request to the Trustee accompanied by a certification as to its status as an Initial Purchaser, exchange such beneficial interest for an equivalent beneficial interest in a Permanent Offshore Global Note, and the Trustee will comply with such request and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.
ARTICLE 3
REDEMPTION; OFFER TO PURCHASE
Section 3.01 Optional Redemption. At any time on or after the Par Call Date, the Company may redeem some or all of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the Redemption Date. At any time before the Par Call Date, the Company may redeem some or all of the Notes at a redemption price equal to (1) 100% of the principal amount of the Notes redeemed, plus (2) the excess, if any, of (x) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed (as if the Notes matured on the Par Call Date), discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year of twelve 30-day months) at a rate equal to the sum of the Treasury Rate plus 50 basis points, minus accrued and unpaid interest, if any, on the Notes being redeemed to, but excluding, the Redemption Date over (y) the principal amount of the Notes being redeemed, plus (3) accrued and unpaid interest, if any, on the Notes being redeemed to, but excluding, the Redemption Date.
Section 3.02 Method and Effect of Redemption. (a) If the Company elects to redeem Notes, it must notify the Trustee of the Redemption Date and the principal amount of Notes to be redeemed by delivering an Officers’ Certificate at least 5 Business Days before the sending of a notice of redemption (unless a shorter period is satisfactory to the Trustee). If fewer than all of the Notes are being redeemed, the Officers’ Certificate must also specify a record date not less than 15 days after the date of the notice of redemption is given to the Trustee, and the Trustee will select the Notes to be redeemed pro rata, by lot or by any other method the Trustee in its sole discretion deems fair and appropriate, in accordance with DTC’s applicable procedures, in minimum denominations of $2,000 and multiples of $1,000 principal amount in excess thereof (provided that no Notes in denominations of $2,000 or less may be redeemed in part) and, in respect of Global Notes, in accordance with the procedures of DTC (subject to adjustments so that no Note in an unauthorized denomination remains outstanding). The Trustee will notify the Company promptly of the Notes or portions of Notes to be called for redemption. Notice of redemption must be sent by first class mail (or delivered electronically in the case of Global Notes held by DTC) by the Company or at the Company’s request, by the Trustee in the name and at the expense of the Company, to Holders whose Notes are to be
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redeemed at least 30 days but not more than 60 days before the Redemption Date, except that a notice of redemption may be sent more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture in accordance with the provisions of Article 8.
(b) The notice of redemption will identify the Notes (including CUSIP numbers) to be redeemed and will include or state the following:
(1) the Redemption Date;
(2) the redemption price, including the portion thereof representing any accrued and unpaid interest;
(3) the place or places where Notes are to be surrendered for redemption;
(4) Notes called for redemption must be so surrendered in order to collect the redemption price;
(5) on the Redemption Date the redemption price will become due and payable on Notes called for redemption, and interest on Notes called for redemption will cease to accrue on and after the Redemption Date;
(6) if any Note is redeemed in part, on and after the Redemption Date, upon surrender of such Note, new Notes equal in principal amount to the unredeemed portion will be issued;
(7) if any Note contains a CUSIP number, no representation is being made as to the correctness of the CUSIP number either as printed on the Notes or as contained in the notice of redemption and the Holder should rely only on the other identification numbers printed on the Notes; and
(8) whether the notice of redemption is conditional and what conditions shall occur prior to the Redemption Date.
(c) Once notice of redemption is sent to the Holders, Notes called for redemption become due and payable at the redemption price on the Redemption Date, and upon surrender of the Notes called for redemption, the Company shall redeem such Notes at the redemption price. Commencing on the Redemption Date, Notes redeemed will cease to accrue interest. Upon surrender of any Note redeemed in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note.
(d) Notice of any redemption of Notes may, at the Company’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of indebtedness or an acquisition or other strategic transaction involving a change of control of the Company or another entity). If such redemption is so subject to satisfaction of one or more conditions precedent, such notice of redemption shall describe each such condition, and such notice of redemption may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived on or prior to the Business Day immediately preceding the relevant Redemption Date. The Company shall provide written notice to the Trustee prior to the close of business two Business Days prior to the Redemption Date if any such redemption has been rescinded, and upon receipt the Trustee shall provide such notice to each Holder of the Notes in the same manner in which the notice of redemption was given. Once notice of redemption is mailed or sent, subject to the satisfaction of any conditions precedent provided in the notice of redemption, the Notes called for redemption will become due and payable on the Redemption Date and at the applicable price as set forth in Section 3.01.
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Section 3.03 Offer to Purchase. (a) An “Offer to Purchase” means an offer by the Company to purchase Notes as required by this Indenture. An Offer to Purchase must be made by written offer (the “offer”) sent to the Holders. The Company will notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to sending the offer to Holders of its obligation to make an Offer to Purchase, and the offer will be sent by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company.
(b) The offer must include or state the following as to the terms of the Offer to Purchase:
(1) the provision of this Indenture pursuant to which the Offer to Purchase is being made;
(2) the aggregate principal amount of the outstanding Notes offered to be purchased by the Company pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount has been determined pursuant to this Indenture) (the “purchase amount”);
(3) the purchase price, including the portion thereof representing accrued and unpaid interest;
(4) an expiration date (the “expiration date”) not less than 30 days or more than 60 days after the date of the offer, and a settlement date for purchase (the “purchase date”) not more than five Business Days after the expiration date;
(5) information concerning the business of Parent and its Subsidiaries (which information may be incorporated by reference in such Offer to Purchase), which the Company in good faith believes will enable the Holders to make an informed decision with respect to the Offer to Purchase, at a minimum to include:
(A) the most recent annual and quarterly financial statements and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for Parent,
(B) a description of material developments in Parent’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Company to make the Offer to Purchase), and
(C) if applicable, appropriate pro forma financial information concerning the Offer to Purchase and the events requiring the Company to make the Offer to Purchase;
(6) that a Holder may tender all or any portion of its Notes pursuant to an Offer to Purchase, subject to the requirement that any portion of a Note tendered must be in a minimum denomination of $2,000 or integral multiples of $1,000 principal amount in excess thereof (provided that no Notes in denominations of $2,000 or less may be tendered in part);
(7) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase;
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(8) that each Holder electing to tender a Note pursuant to the offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Company or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer) or in accordance with DTC’s applicable procedures;
(9) that interest on any Note not tendered, or tendered but not purchased by the Company pursuant to the Offer to Purchase, will continue to accrue;
(10) that on the purchase date the purchase price will become due and payable on each Note accepted for purchase pursuant to the Offer to Purchase, and interest on Notes purchased will cease to accrue on and after the purchase date;
(11) that Holders are entitled to withdraw Notes tendered by giving notice, which must be received by the Company, as applicable, or the Trustee not later than the close of business on the expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender, provided that if Notes are held in book entry form, such withdrawal shall be in accordance with DTC’s applicable procedures;
(12) (i) that if Notes in an aggregate principal amount less than or equal to the purchase amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company, as applicable, will purchase all such Notes, and (ii) that if the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company, as applicable, will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 principal amount in excess thereof will be purchased;
(13) that if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and
(14) that if any Note contains a CUSIP number, no representation is being made as to the correctness of the CUSIP number either as printed on the Notes or as contained in the offer and the Holder should rely only on the other identification numbers printed on the Notes.
(c) Prior to the purchase date the Company will accept tendered Notes for purchase as required by the Offer to Purchase and deliver to the Trustee all Notes so accepted together with an Officers’ Certificate specifying which Notes have been accepted for purchase. On the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part.
(d) The Company will comply with Rule 14e-1 under the Exchange Act and all other applicable laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.
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ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes. (a) The Company shall duly and punctually make all payments in respect of the Notes in accordance with the terms of the Notes and this Indenture. Any payments made or due pursuant to this Indenture shall be considered paid on the applicable date due if by 11:00 a.m., New York City time, on such date the Paying Agent holds, in accordance with this Indenture, cash sufficient to pay all such amounts then due. Payment of the principal and interest on the Notes shall be 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.
(b) The principal amount and accrued interest on the Notes shall be payable at the offices of the Paying Agent; provided that, except in the case of a Global Note, the Company will pay interest (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Register or (ii) by wire transfer in immediately available funds to a Holder with an aggregate principal amount of Notes of any series in excess of $2.0 million, to the place and account within the United States designated in writing at least 15 calendar days prior to the interest payment date by the Person entitled thereto as specified in the Register. Presentation of Notes is required for payment at maturity.
(c) The Company agrees to pay interest on overdue principal and overdue installments of interest at the rate per annum specified in the Notes.
Section 4.02 Maintenance of Office or Agency. The Company will maintain in the United States of America an office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company hereby initially designates the Corporate Trust Office of the Trustee as such office of the Company. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee.
The Company may also from time to time designate one or more other offices or agencies in the United States of America where the Notes may be surrendered or presented for any of such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 4.03 Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each Subsidiary in accordance with their respective organizational documents, and the material rights, licenses and franchises of the Company and each Subsidiary, provided that the Company is not required to preserve any such right, license or franchise, or the existence of any Subsidiary, if the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole; and provided, further, that this Section does not prohibit any transaction otherwise permitted by Article 5.
Section 4.04 Reports and Delivery of Certain Information. (a) The Company covenants to comply with Section 314(a) of the Trust Indenture Act as it relates to information, documents and reports which the Company may be required to file with the Trustee pursuant to such Section 314(a) and with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or otherwise by the Exchange Act, the Trust Indenture Act or other rules and regulations of the Commission and to file such information, documents and reports with the Trustee within 15 calendar days after the same is filed with the Commission; provided that in each case the delivery of materials to the Trustee by electronic means or filing of documents pursuant to the Commission’s “EDGAR” system (or any successor electronic filing system) shall be deemed to be “filed” with the Trustee for purposes of this Section 4.04, provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed
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pursuant to the “EDGAR” system (or its successor) and provided, further that the Company shall promptly notify the Trustee in writing whenever it shall have so filed such materials; and provided, further, that so long as Parent is a Guarantor of the Notes, the information, documents and reports required to be filed and provided as described in this Section 4.04 may, at the Company’s option, be filed and provided by, and be those of, Parent rather than the Company. Delivery of such information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(b) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, the Company will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.05 Payment of Taxes and Other Claims. The Company will pay or discharge, and cause each of its Subsidiaries to pay or discharge before the same become delinquent (i) all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or its income or profits or property, and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of the Company or any Subsidiary, other than any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established.
Section 4.06 Maintenance of Properties and Insurance. (a)The Company will cause all properties used or useful in the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in good condition, repair and working order as in the judgment of the Company may be necessary so that the business of the Company and its Subsidiaries may be properly conducted at all times; provided that nothing in this Section prevents the Company or any Subsidiary from discontinuing the use, operation or maintenance of any of such properties or disposing of any of them, if such discontinuance or disposal (i)(A) is, in the judgment of the Company, desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole or (B) would not have a material adverse effect on the ability of the Company and the Parent to satisfy their obligations under this Indenture and, to the extent applicable (ii) is not otherwise prohibited by this Article 4.
(b) The Company will provide or cause to be provided, for itself and its Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the good faith opinion of the Board of Directors, is adequate and appropriate for the conduct of the business of the Company and its Subsidiaries.
Section 4.07 Limitation on Liens. (a) Neither the Company nor any of its Subsidiaries will create or incur any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured, until such time as such Indebtedness is no longer secured by such Lien, except:
(i) Liens existing as of the Issue Date;
(ii) Liens granted after the Issue Date created in favor of the Holders of the Notes;
(iii) Liens created in substitution of, or as replacements for, any Liens permitted by clause (i) or (ii) of this Section 4.07; provided that based on a good faith determination of one of the Company’s Senior Officers, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(iv) Permitted Liens.
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(b) Notwithstanding Section 4.07(a), the Company or any Subsidiary of the Company may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.07(a) if, after giving effect thereto, Aggregate Debt does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) $780.0 million. The Company or any Subsidiary of the Company also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to this Section 4.07(b).
Section 4.08 Limitation on Subsidiary Debt. (a) The Company will not permit any of its Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of the Company, “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
The foregoing restriction shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(i) Indebtedness of a Person existing at the time such Person is merged into or consolidated with any Subsidiary of the Company or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of the Company and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of the Company (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(ii) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Company; provided that any Indebtedness was not incurred in contemplation thereof;
(iii) Indebtedness owed to Parent or any Subsidiary of Parent;
(iv) any Guarantee of Permitted Bank Indebtedness; or
(v) Indebtedness outstanding on the date of this Indenture not referred to in clause (iv) above or any extension, renewal, replacement or refunding of any Indebtedness existing on the date of this Indenture or referred to in clauses (i), (ii), (iii) or (iv); provided that any such extension, renewal, replacement or refunding of such Indebtedness shall be created within 12 months of repaying, or terminating the commitments with respect to, the Indebtedness referred to in this clause or clauses (i), (ii), (iii) or (iv) above and the principal amount of the Indebtedness shall not exceed the principal amount of Indebtedness plus any premium or fee payable in connection with any such extension, renewal, replacement or refunding, so secured at the time of such extension, renewal, replacement or refunding.
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(b) Notwithstanding Section 4.08(a), the Company or any Subsidiary of the Company may, create, incur, issue, assume or Guarantee Subsidiary Debt which would otherwise be subject to the restrictions set forth in the preceding paragraph, without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation, incurrence, issuance or assumption of such Subsidiary Debt or (ii) $780.0 million. The Company or any Subsidiary of the Company may, without Guaranteeing the Notes, create or incur Indebtedness that extends, renews, substitutes or replaces (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Indebtedness permitted pursuant to the preceding sentence; provided that any such extension, renewal, substitution or replacement of such Indebtedness shall be created within 12 months of repaying the Indebtedness referred to in this sentence or the preceding sentence and the principal amount of the Indebtedness shall not exceed the principal amount of Indebtedness plus any premium or fee payable in connection with any such extension, renewal, substitution or replacement, so secured at the time of such extension, renewal, substitution or replacement.
(c) Any Subsidiary of the Company required to Guarantee the Notes pursuant to Section 4.08(a) or that chooses to Guarantee the Notes shall (i) execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit B or in such other form satisfactory to the Trustee pursuant to which such Subsidiary shall unconditionally Guarantee all of the Company’s obligations under the Notes and this Indenture in respect of the Notes on the terms set forth in this Indenture and (ii) deliver to the Trustee an Opinion of Counsel. The execution by such Subsidiary of a supplemental indenture pursuant to this Section 4.08(c) shall evidence the Note Guarantee of such Subsidiary, whether or not the person signing as an officer of such Subsidiary still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication shall constitute due delivery of such Note Guarantee set forth in this Indenture on behalf of such Subsidiary. The Note Guarantee of a Subsidiary will terminate upon:
(i) the release or discharge of the Indebtedness of such Subsidiary that resulted in the obligation to Guarantee the Notes pursuant to Section 4.08(a) (other than a discharge of such Indebtedness (A) if such Indebtedness is a guarantee, as a result of payment under such guarantee or (B) as a result of the acceleration of such Indebtedness due to a default or an event of default under the terms thereof);
(ii) a sale or other disposition (including by way of consolidation or merger) of the Capital Stock of such Subsidiary such that such Subsidiary is no longer a Subsidiary of the Parent;
(iii) defeasance or discharge of the Notes, as provided under Article 8; or
(iv) if such Subsidiary was not required to Guarantee the Notes pursuant to Section 4.08(a) but did so at its option, the request by such Subsidiary of release at any time; provided that after giving effect to such release the Company would be in compliance with the covenant set forth in this Section 4.08.
Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel, the Trustee will execute any documents reasonably requested by the Company in order to evidence the release of any Subsidiary Guarantor from its obligations under its Note Guarantee.
Section 4.09 Limitation on Sale and Lease-Back Transactions. (a) Neither the Company nor any of its Subsidiaries will enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(i) such transaction was entered into prior to the Issue Date;
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(ii) such transaction was for the sale and leasing back to the Company of any Principal Property by one of its Subsidiaries;
(iii) such transaction involves a lease for not more than three years (or which may be terminated by the Company within a period of not more than three years);
(iv) the Company would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to the Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes, pursuant to Section 4.07(a); or
(v) the Company applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement of long-term Indebtedness within 12 months before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, the Company may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to the Company.
(b) Notwithstanding Section 4.09(a), the Company and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the closing date of the sale and lease-back transaction or (ii) $780.0 million.
Section 4.10 Repurchase of Notes upon a Change of Control Triggering Event. (a) Not later than 30 days following a Change of Control Triggering Event, the Company will make an Offer to Purchase all outstanding Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase pursuant to Section 3.03.
(b) The Company will not be required to make an Offer to Purchase following a Change of Control Triggering Event with respect to the Notes if a third party (including the Parent) makes the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to an Offer to Purchase made by the Company and purchases all Notes validly tendered and not withdrawn under such Offer to Purchase. Notwithstanding anything to the contrary herein, an Offer to Purchase may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of such Offer to Purchase.
Section 4.11 Reports to Trustee. (a) The Company will deliver to the Trustee within 120 days after the end of each fiscal year a certificate from the principal executive, financial or accounting officer of the Company stating that the officer has conducted or supervised a review of the activities of the Company and its performance under this Indenture and that, based upon such review, the Company has fulfilled its obligations hereunder or, if there has been a Default, specifying the Default and its nature and status and what action the Company is taking or proposes to take with respect thereto.
(b) The Company will deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of a Default, an Officers’ Certificate setting forth the details of the Default, and the action which the Company proposes to take with respect thereto.
Section 4.12 Additional Interest Notice. In the event that the Company is required to pay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Company will provide an Officers’ Certificate (“Additional Interest Notice”) to the Trustee setting forth its obligation to
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pay Additional Interest no later than 15 days prior to the proposed payment date for the Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. Until such time as the Company delivers to the trustee an Additional Interest Notice, the Trustee shall have no duty or obligation to monitor if Additional Interest is due. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Additional Interest, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of the Additional Interest.
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01 The Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge with or into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, in a single transaction or in a series of related transactions, unless:
(a) either (i) the Company shall be the continuing Person or (ii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company (the “Successor Company”), (A) shall be organized or incorporated and validly existing under the laws of the Cayman Islands, the laws of Ireland or the laws of the United States of America, any State thereof or the District of Columbia;
(b) the Successor Company expressly assumes the Company’s obligations with respect to the Notes and this Indenture pursuant to a supplemental indenture, in form satisfactory to the Trustee; provided that, if such Successor Company is organized under the laws of Ireland, such supplemental indenture shall contain a customary provision (including customary exceptions) whereby all payments made by the Successor Company will be made free and clear of and without withholding or deduction for, or on account of, any taxes unless the withholding or deduction of such taxes is then required by law and that, if any deduction or withholding for, or on account of, any taxes imposed or levied by or on behalf of Ireland or any political subdivision or governmental authority thereof or therein having power to tax will at any time be required from any payments made with respect to any Note, including payments of principal, redemption price, premium, if any, interest or Additional Interest, if any, the Successor Company will pay (together with such payments) such additional amounts (the “ Additional Amounts ”) as may be necessary in order that the net amounts received in respect of such payments by the Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on any such Note in the absence of such withholding or deduction;
(c) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(d) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Section 5.01.
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Section 5.02 Parent May Consolidate, Etc., Only on Certain Terms. Parent shall not consolidate with or merge with or into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, in a single transaction or in a series of related transactions, unless:
(a) either (i) Parent shall be the continuing Person or (ii) the Person (if other than Parent) formed by such consolidation or into which Parent is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of Parent (the “Successor Parent”), shall be organized or incorporated and validly existing under the laws of the Cayman Islands, the laws of Ireland or under the laws of the United States of America, any State thereof or the District of Columbia
(b) the Successor Parent shall expressly assume, by an indenture supplemental hereto, in form satisfactory to the Trustee, executed and delivered to the Trustee, all of the obligations of Parent under the Notes, the Parent Guarantee, this Indenture and the Registration Rights Agreement;
(c) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(d) Parent or the Successor Parent has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Section 5.02.
Section 5.03 Successor Substituted. (a) Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all the properties and assets of the Company in accordance with Section 5.01, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Successor Company had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes.
(b) Upon any consolidation of Parent with, or merger of Parent into, any other Person or any conveyance, transfer or lease of all or substantially all the properties and assets of Parent in accordance with Section 5.02, the Successor Parent shall succeed to, and be substituted for, and may exercise every right and power of, Parent under this Indenture with the same effect as if such Successor Parent had been named as Parent herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Parent Guarantee and the Notes.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01 Events of Default. “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) the Company defaults in any payment of interest (including Additional Interest) on any Note when the same becomes due and payable, and such default continues for a period of 30 calendar days;
(b) the Company defaults in the payment of the principal of or premium (if any) on any Note when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase (including pursuant to an Offer to Purchase), upon declaration of acceleration or otherwise;
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(c) default in the performance of the Company’s obligations under Section 3.03 and Section 4.10 in connection with a Change of Control Triggering Event and such default continues for a period of 30 calendar days;
(d) default in the performance of any covenant, agreement or condition of the Company or any of its Subsidiaries or Parent in this Indenture or the Notes (other than a default specified in Section 6.01(a), Section 6.01(b) or Section 6.01(c)), and such default continues for a period of 90 calendar days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Trustee and the Company by the Holders of at least 25% in aggregate principal amount of the outstanding Notes a written notice specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder, provided however, that, with respect to Section 4.04, the 90 calendar day period shall be extended to 150 calendar days;
(e) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law, (ii) a decree or order adjudging the Company or such Significant Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or such Significant Subsidiary under any applicable law or (iii) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or such Significant Subsidiary or of any substantial part of the property or assets of the Company or such Significant Subsidiary, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or
(f) the commencement by the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or such Significant Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or such Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or such Significant Subsidiary in furtherance of any such action.
Section 6.02 Acceleration of Maturity; Rescission and Annulment. (a) If an Event of Default (other than those specified in 6.01(e) and 6.01(f)) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes may declare the principal amount plus accrued and unpaid interest on the Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount plus accrued and unpaid interest shall become immediately due and payable.
Notwithstanding the foregoing, if an Event of Default specified in Section 6.01(e) or 6.01(f) has occurred and is continuing, the principal amount plus accrued and unpaid interest on the Notes will ipso facto become due and payable without any declaration or other act on the part of the Trustee or any Holder.
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(b) At any time after such a declaration of acceleration or any automatic acceleration under Section 6.01(e) or Section 6.01(f) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided, the Holders of a majority in aggregate principal amount of the Notes, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(i) such rescission and annulment will not conflict with any judgment or decree of a court of competent jurisdiction; and
(ii) all Events of Default, other than the non-payment of the principal amount plus accrued and unpaid interest on the Notes which have become due solely by such accelerated payment requirement, have been cured or waived as provided in Section 6.12.
Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if a default is made in the payment of the principal amount of or premium (if any) on any Note when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of the Notes, the whole amount then due and payable on such Notes and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated to, pursue any available remedy to collect the payment of the principal amount, premium (if any) and accrued and unpaid interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the Notes or does not produce any of the Notes in the proceeding.
Section 6.04 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company (or any other obligor upon the Notes), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 7.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.05 Application of Money Collected. Any money or property collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property to Holders, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under this Indenture (including its agents and counsel);
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SECOND: to the payment of the amounts then due and unpaid on the Notes for the principal amount, premium (if any) and accrued and unpaid interest in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes; and
THIRD: to the Company.
Section 6.06 Limitation on Suits. No Holder of any Note shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder (other than in the case of an Event of Default specified in Section 6.01(a) or 6.01(b)), unless:
(i) such Holder has previously given written notice to the Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% in aggregate principal amount of the outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against any loss, liability or expense to be incurred in compliance with such request;
(iv) the Trustee for 60 calendar days after its receipt of such notice, request and offer of security or indemnity has failed to institute any such proceeding; and
(v) no direction, in the opinion of the Trustee, inconsistent with such written request has been given to the Trustee during such 60 calendar day period by the Holders of a majority in aggregate principal amount of the outstanding Notes;
it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), except in the manner herein provided and for the equal and ratable benefit of all the Holders.
Section 6.07 Unconditional Right of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the contractual right of any Holder to institute suit for the enforcement of payment of the principal amount, premium (if any) and accrued and unpaid interest in respect of the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, shall not be adversely amended without the consent of such Holder.
Section 6.08 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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Section 6.09 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.04, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.10 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Section 6.10 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.11 Control by Holders. The Holders of a majority in principal amount of the Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to the Notes or exercising any trust or power conferred on the Trustee by the Holders of the Notes; provided that the Trustee, in good faith, may refuse to follow any direction that conflicts with any rule of law or with this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any other Holder) or that would involve the Trustee in personal liability or would otherwise be contrary to applicable law, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes.
Section 6.12 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Notes may on behalf of the Holders of all the Notes waive any past Default hereunder and its consequences, except a Default:
(i) described in Section 6.01(a) or 6.01(b); or
(ii) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.13 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect of the Notes, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant; but the provisions of this Section 6.13 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal amount or premium (if any) on any Note when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise.
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Section 6.14 Waiver of Stay or Extension Laws. Each of the Company and the Parent covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Parent (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
THE TRUSTEE
Section 7.01 General. (a) The duties and responsibilities of the Trustee are as provided by the Trust Indenture Act and as set forth herein. Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to this Article 7.
(b) Except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee. In case an Event of Default has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct.
Section 7.02 Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(1) In the absence of bad faith on its part, the Trustee may conclusively rely, and will be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit.
(2) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both pursuant to Section 11.04 and conforming to Section 11.05 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
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(4) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee security or indemnity satisfactory to it against the costs, loss, liability or expenses that might be incurred by it in compliance with such request or direction.
(5) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.11 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(6) The Trustee may consult with counsel of its selection, and the verbal or written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(7) No provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, or in the exercise of its rights or powers.
(8) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(9) 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 or Event of Default, as applicable, is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(10) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(11) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(12) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(13) Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the securities.
(14) Any discretion, permissive right or privilege of the Trustee hereunder shall not be construed an obligation or duty.
(15) The Trustee shall not be liable for actions taken or errors of judgment made by the Trustee in good faith.
(16) The Trustee shall have no obligation to pursue any action that is not in accordance with applicable law.
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Section 7.03 Individual Rights of Trustee. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6):
(a) “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a Lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04 Trustee’s Disclaimer. The Trustee (i) makes no representation as to the validity or adequacy of this Indenture or the Notes, (ii) is not accountable for the Company’s use or application of the proceeds from the Notes and (iii) is not responsible for any statement in the Notes other than its certificate of authentication.
Section 7.05 Notice of Default. If any Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee will send notice of the Default to each Holder within 90 days after it occurs, unless the Default has been cured; provided that, except in the case of a default in the payment of the principal of or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interest of the Holders. Notice to Holders under this Section will be given in the manner and to the extent provided in the Trust Indenture Act Section 313(c).
Section 7.06 Reports by Trustee to Holders. Within 60 days after each December 1, beginning with December 1, 2020, the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such February 1, if required by Trust Indenture Act Section 313(a), and file such reports with each stock exchange upon which the Notes are or may be listed and with the Commission, if required by Trust Indenture Act Section 313(d). Parent or the Company will promptly notify the Trustee in writing when any Notes are listed on any national securities exchange and of any delisting.
Section 7.07 Compensation and Indemnity. (a) The Company will pay the Trustee compensation as mutually agreed upon in writing for its services. The compensation of the Trustee is not limited by any law on compensation of a Trustee of an express trust. The Company will reimburse the Trustee upon written request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, including the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The Company will indemnify each of the Trustee and any predecessor Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense incurred by it without negligence or willful misconduct on its part arising out of or in connection with the acceptance, enforcement (including this Section) or administration of this Indenture and its duties under this Indenture and the Notes, as adjudicated
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by a court of competent jurisdiction, including the costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of defending itself against any claim (whether asserted by the Company, the Parent, a Holder or any other Person) or liability and of complying with any process served upon it or any of its officers or authorized signatories in connection with the exercise or performance of any of its powers or duties under this Indenture and the Notes.
(c) To secure the Company’s payment obligations in this Section, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, and interest on particular Notes. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a grant of a security interest by the Company or the Guarantor in its own assets under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
(d) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(e) or Section 6.01(f), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
(e) The provisions of this Section 7.07 shall survive any termination or satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
Section 7.08 Replacement of Trustee. (a)(1)The Trustee may resign at any time by written notice to the Company.
(2) The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by 30 days’ written notice to the Trustee and the Company.
(3) If the Trustee is no longer eligible under Section 7.10 or in the circumstances described in Trust Indenture Act Section 310(b), any Holder that satisfies the requirements of Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(4) The Company may remove the Trustee if: (i) the Trustee is no longer eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b) If the Trustee has been removed by the Holders, Holders of a majority in principal amount of the Notes may appoint a successor Trustee with the consent of the Company. Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. If the successor Trustee does not deliver its written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.
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(c) Upon delivery by the successor Trustee of a written acceptance of its appointment to the retiring Trustee and to the Company, (i) the retiring Trustee will transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.07, (ii) the resignation or removal of the retiring Trustee will become effective, and (iii) the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. Upon request of any successor Trustee, the Company will execute any and all instruments for fully and vesting in and confirming to the successor Trustee all such rights, powers and trusts. The Company will give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders, and include in the notice the name of the successor Trustee and the address of its Corporate Trust Office.
(d) Notwithstanding replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act will be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee in this Indenture.
Section 7.10 Eligibility. This Indenture must always have a Trustee that satisfies the requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 Money Held in Trust. The Trustee will not be liable for interest on any money received by it except as it may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust under Article 8.
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01 Defeasance and Discharge of Indenture. The Company may discharge its obligations under this Indenture with respect to the Notes when:
(a) either
(i) all the Notes that have been authenticated and delivered have been accepted by the Trustee for cancellation (other than any Notes which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.04); or
(ii) all the Notes that have not been accepted by the Trustee for cancellation (A) shall have become due and payable, (B) are by their terms to become due and payable at their Stated Maturity within one year or (C) are scheduled for redemption within one year and the Company shall have made irrevocable arrangements satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the Company’s name and at the Company’s expense; and provided, in each case (A), (B) or (C), the Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee sufficient funds to pay and discharge the entire indebtedness all outstanding Notes at their State Maturity or scheduled Redemption Date; and
(b) the Company shall have paid or caused to be paid all other sums then due and payable under this Indenture; and
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(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
If the foregoing conditions are met, 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 proper instruments prepared by the Company acknowledging such satisfaction of and discharging this Indenture except as to:
(i) rights of registration of transfer and exchange of Notes;
(ii) the Company’s right of optional redemption;
(iii) substitution of mutilated, defaced, destroyed, lost or stolen Notes;
(iv) rights of Holders to receive payment of the principal amount, premium (if any) and interest when due and payable;
(v) the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(vi) the rights of the Holders as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them; and the rights of the Company to be repaid any money pursuant to Sections 8.05 and 8.06.
Section 8.02 Legal Defeasance. After the 91st calendar day following the deposit referred to in clause (a) below of this Section 8.02, the Company will be deemed to have paid and will be discharged from its obligations in respect of the Notes and this Indenture, other than its obligations in Article 2 and Sections 4.01, 4.02, 7.07, 7.08 and as set forth in clauses (i) through (vi) of Section 8.01(c); provided that the following conditions have been satisfied:
(a) the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders in cash in U.S. dollars or Governmental Obligations or a combination thereof (other than moneys repaid by the Trustee or any Paying Agent to the Company in accordance with Section 8.06) in each case sufficient without reinvestment, in the written opinion of an internationally recognized firm of independent financial advisors to pay and discharge, and which shall be applied by the Trustee to pay and discharge, all of the principal, premium (if any) and interest when the same becomes due and payable at Stated Maturity, upon optional redemption, upon required repurchase or otherwise or if the Company has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Company’s name and at the Company’s expense;
(b) the Company has delivered to the Trustee an Opinion of Counsel stating that, as a result of a published IRS ruling (or a ruling on which the beneficial owners of the Notes can rely) or a change in applicable U.S. federal income tax law, the beneficial owners of the Notes will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
(c) no Default with respect to the outstanding Notes has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st calendar day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st calendar day;
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(d) the defeasance will not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all Notes were in default within the meaning of such Act;
(e) the deposit will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(f) the defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and
(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with.
Prior to the end of the 91 calendar day period, none of the Company’s obligations under this Indenture or the Notes will be discharged. Thereafter, the Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Notes and this Indenture except for the surviving obligations specified above.
Section 8.03 Covenant Defeasance. Following the deposit referred to in Section 8.02(a), the Company’s obligations set forth in Sections 4.04, 4.07, 4.08, 4.09, 4.10 and Sections 6.01(c) and (d) will no longer constitute an Event of Default; provided that the following conditions have been satisfied:
(a) the Company has complied with clauses (a), (c), (d), (e), (f) and (g) of Section 8.02; and
(b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Notes will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur.
Except as specifically stated above, none of the Company’s obligations under this Indenture will be discharged.
Section 8.04 Application by Trustee of Funds Deposited for Payment of Notes. Subject to Section 8.06, all moneys deposited with the Trustee pursuant to Section 8.01 or Section 8.02 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Notes for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium (if any) and interest. Such money need not be segregated from other funds except to the extent required by law.
Section 8.05 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be repaid to the Company or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys or Governmental Obligations.
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Section 8.06 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Subject to applicable abandoned property law, any moneys or Governmental Obligations deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or premium (if any) on or interest on any Note and not applied but remaining unclaimed for two years after the date upon which such principal, premium or interest shall have become due and payable, shall, at the Company’s request, be repaid to the Company by the Trustee or such Paying Agent, and the Holder of the Note shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such moneys shall thereupon cease. Neither the Trustee nor any Paying Agent will be liable for those payments after the Company has been repaid.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Supplemental Indentures without Consent of Holders. Without the consent of any Holders, each of the Company and Parent and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants, agreements and obligations of the Company herein and in the Notes;
(ii) to evidence the succession of another Person to Parent and the assumption by any such successor of the covenants, agreements and obligations of Parent herein and in the Notes and the Parent Guarantee;
(iii) to add to the covenants of the Company and Parent for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company or the Parent;
(iv) to add any additional Events of Default for the benefit of the Holders;
(v) to add, change or eliminate any provision of this Indenture applying to the Notes; provided that the Company deems such action necessary or advisable and that such action does not materially adversely affect the interests of any Holder of the Notes;
(vi) to evidence and provide for a successor Trustee with respect to the Notes or to add to or change any provision to the extent necessary to appoint a separate Trustee for the Notes;
(vii) to cure any ambiguity or defect, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided that such action pursuant to this clause (vii) does not materially adversely affect the rights of the Holders of the Notes (in which case the Company will deliver to the Trustee an Officers’ Certificate confirming the same);
(viii) to supplement any provision of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance or discharge of the Notes; provided that such change or modification does not materially adversely affect the interests of the Holders of the Notes;
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(ix) to add, change or eliminate any provision of this Indenture in accordance with the Trust Indenture Act in connection with or following qualification thereunder; provided that such action does not materially adversely affect the interests of any Holder of Notes;
(x) to convey, transfer, assign, mortgage or pledge to the Trustee as collateral security for the Notes any property or assets or to release collateral in accordance with Section 4.07;
(xi) to provide for or release Guarantors in accordance with Section 4.08;
(xii) to provide for the issuance of Additional Notes ranking equally with the Notes in all respects (other than (A) the payment of interest accruing prior to the issue date of such Additional Notes and (B) the first payment of interest following the issue date of such Additional Notes); provided that if such Additional Notes are not fungible with the Original Notes for U.S. federal income tax purposes, then such Additional Notes shall have a separate CUSIP number from the Original Notes;
(xiii) to conform any provision of this Indenture to the “Description of the New Notes” contained in the Confidential Offering Memorandum dated June 3, 2020 relating to the Notes (in which case the Company will deliver to the Trustee an Officers’ Certificate confirming the same); or
(xiv) to make any change in the Parent Guarantee that would not adversely affect the Holders.
Section 9.02 Supplemental Indentures with Consent of Holders. When authorized by a Board Resolution, the Company, the Parent and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture if the Company obtains the written consent of the Holders of at least a majority in aggregate principal amount of outstanding Notes affected by such supplemental indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each outstanding Note affected thereby:
(i) reduce the rate of or change the time for payment of interest on any Note;
(ii) reduce the principal amount of, or change the Stated Maturity of, any Note;
(iii) reduce the redemption price, including upon a Change of Control Triggering Event, of any Note or amend or modify in any manner adverse to the Holders of Notes the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (other than amendments to the definition of “Change of Control” prior to the occurrence of a Change of Control Triggering Event);
(iv) make the principal, premium if any, or interest of any Note payable in money other than that stated in the Note or other than in accordance with the provisions of this Indenture;
(v) reduce the quorum or voting requirements under this Indenture;
(vi) reduce the percentage in principal amount of the outstanding Notes, the consent of whose Holders is required for any modification of this Indenture for any waiver of compliance with certain provisions of this Indenture, for waiver of certain defaults hereunder and their consequences, or for consent to take any action under this Indenture, in each case where this Indenture requires the consent of the Holder of each outstanding Note affected thereby;
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(vii) change the ranking of the Notes in a manner adverse to the Holders of the Notes;
(viii) waive any Default in the payment of principal, premium, if any, or interest of or on the Notes; or
(ix) amends the contractual right of any Holder to institute suit for enforcement of payment of the principal amount of, premium (if any) and interest on a Holder’s Notes on or after the respective due dates therefor expressed or provided for in such Notes.
It shall not be necessary for any act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such act approves the substance thereof.
Section 9.03 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article 9 or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 7.01) shall be fully protected in conclusively relying upon, in addition to the documents required by Sections 11.04 and 11.05, an Opinion of Counsel and an Officers’ Certificate, each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and is a legal, valid and binding obligation of each of the Company and Parent, enforceable against it in accordance with its terms. Subject to the preceding sentence, the Trustee shall sign such supplemental indenture if the same does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article 9, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05 Conformity with Trust Indenture Act. If this Indenture is then qualified under the Trust Indenture Act, every supplemental indenture executed pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act.
Section 9.06 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 shall bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for outstanding Notes.
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ARTICLE 10
PARENT GUARANTEE
Section 10.01 Parent Guarantee. Parent hereby unconditionally and irrevocably guarantees to each Holder and to the Trustee and its successors and assigns:
(a) the full and punctual payment of principal of, premium (if any) on and interest on the Notes when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise, and all other monetary obligations of the Company under this Indenture and the Notes; and
(b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Notes (all the foregoing under (a) and (b) of this Section 10.01 being hereinafter collectively called the “Guaranteed Obligations”).
Parent further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Parent and that Parent will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
Parent waives presentation to, demand of, payment from and protest to the Parent of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Parent waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Parent hereunder shall not be affected by:
(i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Parent or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(ii) any extension or renewal of any thereof;
(iii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(iv) the release of any security held by any Holder or the Trustee for the obligations of any of them;
(v) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or
(vi) except as set forth in Section 10.05, any change in the ownership of Parent.
Parent further agrees that the Parent Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
Except as expressly set forth in Sections 8.02 and 10.05, the obligations of Parent hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations, this Indenture, the Notes or otherwise. Without limiting the generality of the foregoing, the obligations of Parent herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of Parent or would otherwise operate as a discharge of Parent as a matter of law or equity.
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Parent further agrees that the Parent Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or premium (if any) on or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against Parent by virtue hereof, upon the failure of the Company to pay the principal of or premium (if any) on or interest on any Guaranteed Obligation when or to perform or comply with any other Guaranteed Obligation, Parent hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent not prohibited by law) and (3) all other monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
Parent further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of the Parent Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by Parent for the purposes of this Section.
Parent also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section.
Section 10.02 Successors and Assigns. This Article 10 shall be binding upon Parent and its successors and assigns and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
Section 10.03 No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 10 at law, in equity, by statute or otherwise.
Section 10.04 Modification. No modification, amendment or waiver of any provision of this Article 10, nor the consent to any departure by Parent therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Parent in any case shall entitle Parent to any other or further notice or demand in the same, similar or other circumstances.
Section 10.05 Release of Parent Guarantor and Termination of Parent Guarantee. If Parent and the Company merge with each other or consolidate together in a transaction permitted by Sections 5.01 and 5.02, then the Parent Guarantee shall automatically be terminated upon the consummation of such merger or consolidation and shall no longer have any effect from such time without any further action required on the part of the Trustee or any Holder. At the request of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such termination.
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ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act of 1939. Initially, this Indenture shall not be qualified under the Trust Indenture Act, but is governed by the provisions of the Trust Indenture Act to the extent expressly incorporated by reference herein. If this Indenture is later qualified under the Trust Indenture Act, then this Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 11.02 Noteholder Communications; Noteholder Actions. (a) The rights of Holders to communicate with other Holders with respect to this Indenture or the Notes are as provided by the Trust Indenture Act, and the Company and the Trustee shall comply with the requirements of Trust Indenture Act Sections 312(a) and 312(b). Neither the Company nor the Trustee will be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
(b)(1)Any request, demand, authorization, direction, notice, consent to amendment, supplement or waiver or other action provided by this Indenture to be given or taken by a Holder (an “act”) may be evidenced by an instrument signed by the Holder delivered to the Trustee. The fact and date of the execution of the instrument, or the authority of the person executing it, may be proved in any manner that the Trustee deems sufficient.
(2) The Trustee may make reasonable rules for action by or at a meeting of Holders, which will be binding on all the Holders.
(c) Any act by the Holder of any Note binds that Holder and every subsequent Holder of a Note that evidences the same debt as the Note of the acting Holder, even if no notation thereof appears on the Note. Subject to paragraph (d), a Holder may revoke an act as to its Notes, but only if the Trustee receives the notice of revocation before the date the amendment or waiver or other consequence of the act becomes effective.
(d) The Company may, but is not obligated to, fix a record date (which need not be within the time limits otherwise prescribed by Trust Indenture Act Section 316(c)) for the purpose of determining the Holders entitled to act with respect to any amendment or waiver or in any other regard, except that during the continuance of an Event of Default, only the Trustee may set a record date as to notices of default, any declaration or acceleration or any other remedies or other consequences of the Event of Default. If a record date is fixed, those Persons that were Holders at such record date and only those Persons will be entitled to act, or to revoke any previous act, whether or not those Persons continue to be Holders after the record date. No act will be valid or effective for more than 90 days after the record date.
Section 11.03 Notices. (a) Any notice or communication to the Company will be deemed given if in writing (i) when delivered in person or (ii) five calendar days after mailing when mailed by first class mail, postage prepaid or (iii) when sent by facsimile transmission, with transmission confirmed. Notices or communications to a Guarantor will be deemed given if given to the Company. Any notice to the Trustee will be effective only upon receipt. In each case the notice or communication should be addressed as follows:
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if to the Company:
SEAGATE HDD CAYMAN
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands with a copy to :
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304
Attention: Lisa Stimmell
Fax: 650-493-6811
if to the Trustee :
Wells Fargo Bank, National Association
333 S. Grand Avenue, 5th Floor, Suite 5A
MAC: E2064-05A
Los Angeles, CA 90071
Attention: Corporate Trust Services – Seagate Administrator
Fax: 213-253-7598
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with respect to published notices (which are deemed given on the first date on which such publication is made), any notice or communication to a Holder will be deemed given five calendar days after mailing to the Holder at its address as it appears on the Register by first class mail, postage prepaid or, as to any Global Note registered in the name of DTC or its nominee, in accordance with the procedures of DTC. Copies of any notice or communication to a Holder, if given by the Company, will be mailed to the Trustee at the same time. Defect in mailing a notice or communication to any particular Holder will not affect its sufficiency with respect to other Holders.
(c) Where this Indenture provides for notice, the notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and the waiver will be the equivalent of the notice. Waivers of notice by Holders must be filed with the Trustee, but such filing is not a condition precedent to the validity of any action taken in reliance upon such waivers.
Section 11.04 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company will furnish to the Trustee:
(1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that all such conditions precedent have been complied with, provided, however, that no such Opinion of Counsel shall be required to be furnished in connection with the issuance of the Notes on the Issue Date.
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Section 11.05 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:
(1) a statement that each person signing the certificate or opinion has read the covenant or condition and the related definitions;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in the certificate or opinion is based;
(3) a statement that, in the opinion of each such person, that person has made such examination or investigation as is necessary to enable the person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with, provided that an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials with respect to matters of fact.
Section 11.06 Payment Date Other Than a Business Day. If any payment with respect to a payment of any principal of, premium, if any, or interest on any Note (including any payment to be made on any date fixed for redemption or purchase of any Note) is due on a day which is not a Business Day, then the payment need not be made on such date, but may be made on the next Business Day with the same force and effect as if made on such date, and no interest will accrue for the intervening period.
Section 11.07 Governing Law; Waiver of Jury Trial. This Indenture, including any Note Guarantee, and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York. Each of the Company, the Parent and the Trustee hereby 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, including any Note Guarantee, the Notes or the transactions contemplated hereby.
Section 11.08 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the Company, and no such indenture or loan or debt agreement may be used to interpret this Indenture.
Section 11.09 Successors. All agreements of the Company or the Parent in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successor.
Section 11.10 Duplicate Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile, electronic signature, 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, electronic signature, or PDF shall be deemed to be their original signatures for all purposes. This Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively
49
rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Section 11.11 Separability. In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 11.12 Table of Contents and Headings. The Table of Contents 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 of this Indenture and in no way modify or restrict any of the terms and provisions of this Indenture.
Section 11.13 No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders. No director, officer, employee, incorporator, member or stockholder of the Company or the Parent, as such, will have any liability for any obligations of the Company or the Parent under the Notes, any Note Guarantee or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 11.14 Consent to Jurisdiction; Appointment of Agent for Service of Process. The Company and the Parent, jointly and severally, agree that:
(a) Any suit, action or proceeding against the Company or the Parent arising out of or relating to this Indenture and the Notes may be instituted in any state or U.S. federal court in the Borough of Manhattan, The City of New York, New York, and any appellate court from any thereof, and the Company and the Parent irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Parent irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action or proceeding that may be brought in connection with this Indenture, the Notes and the Registration Rights Agreement, including such actions, suits or proceedings relating to the securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Parent and may be enforced in any court to the jurisdiction of which the Company or the Parent is subject by a suit upon such judgment; provided that service of process is effected upon the Company or the Parent in the manner provided by this Section 11.14.
(b) The Company and the Parent has appointed Seagate Technology (US) Holdings, Inc., located at 47488 Kato Road, Fremont, CA 94538, Attn: Chief Legal Officer as its authorized agent (the “Authorized Agent”), upon whom process may be served in any suit, action or proceeding arising out of or relating to this Indenture or the transactions contemplated herein which may be instituted in any state or U.S. federal court in the Borough of Manhattan, The City of New York, New York, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. Seagate Technology (US) Holdings, Inc. has accepted such appointment and has agreed to act as said agent for service of process. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company and the Parent. Notwithstanding the foregoing, any action involving the Company or the Parent arising out of or relating to this Indenture, the Notes and the Registration Rights Agreement may be instituted in any court of competent jurisdiction in any other jurisdiction.
50
The provisions of this Section 11.14 shall survive any termination or cancellation of this Indenture.
Section 11.15 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 11.16 U.S.A. PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 11.17 Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase United States dollars with such other currency in The City of New York on the Business Day preceding that on which final judgment is given. The obligation of the Company and the Parent with respect to any sum due from it to the Trustee and the Holders shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first Business Day following receipt by the Trustee or the Holders of any sum in such other currency, and only to the extent that the Trustee may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the Trustee or the Holders, the Company and the Parent, jointly and severally, to the extent permitted by law, agree as a separate obligation and notwithstanding any such judgment, to indemnify the Trustee and such Holders against such loss. If the United States dollars so purchased are greater than the sum originally due to the Trustee or the Holders, the Trustee and the Holders hereby agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such person.
[Signature Pages Follow]
51
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| SEAGATE HDD CAYMAN as Issuer | ||||
| By: |
/s/ Gianluca Romano | |||
| Name: | Gianluca Romano | |||
| Title: | Director and Chief Financial Officer | |||
[SIGNATURE PAGE TO 2029 NOTES INDENTURE]
| WELLS FARGO BANK, NATIONAL ASSOCIATION as Trustee | ||||
| By: |
/s/ Maddy Hughes | |||
| Name: | Maddy Hughes | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO 2029 NOTES INDENTURE]
| SEAGATE TECHNOLOGY PLC as Guarantor | ||||
| By: |
/s/ Gianluca Romano | |||
| AUTHORISED OFFICER | ||||
| Name: |
Gianluca Romano | |||
| Title: |
Executive Vice President and Chief Financial Officer | |||
[SIGNATURE PAGE TO 2029 NOTES INDENTURE]
EXHIBIT A
SEAGATE HDD CAYMAN
4.091% Senior Notes due 2029
[CUSIP] [ISIN] [ ]
| No. |
[Up to] $[ ] |
Seagate HDD Cayman, an exempted limited liability company organized under the laws of the Cayman Islands (the “Company,” which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to [ ], or its registered assigns, the principal sum of [set forth on the Schedule of Exchanges of Notes attached hereto][[ ] DOLLARS ($[ ])] on June 1, 2029.
| Interest Rate: |
4.091% per annum. | |
| Interest Payment Dates: |
June 1 and December 1, commencing December 1, 2020. | |
| Regular Record Dates: |
May 15 and November 15. | |
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.
Exhibit A- 1
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers.
| SEAGATE HDD CAYMAN | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit A- 2
(Form of Trustee’s Certificate of Authentication)
This is one of the 4.091% Senior Notes due 2029 described in the Indenture referred to in this Note.
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: |
||
| Authorized Signatory | ||
Dated:
Exhibit A- 3
[REVERSE SIDE OF NOTE]
SEAGATE HDD CAYMAN
4.091% Senior Notes due 2029
| 1. | Principal and Interest. |
The Company promises to pay the principal of this Note on June 1, 2029.
The Company promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note, at the rate of 4.091% per annum (subject to adjustment as provided below).
Interest will be payable semiannually on each interest payment date, commencing December 1, 2020, to the holders of record of the Notes at the close of business on the May 15 and November 15 immediately preceding the interest payment date. However, the Company will pay the interest payable on the Notes at their Stated Maturity to the Persons to whom the Company pays the principal amount of the Notes.
[The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated June 18, 2020, between the Company, the Parent and the Initial Purchasers named therein relating to the Company’s 4.091% Senior Notes due 2029 (the “Registration Rights Agreement”), which provides in certain circumstances for the payment of additional interest to certain Holders of Notes, subject to the terms and conditions of such agreement.]1
Interest on this Note will accrue from the most recent date to which interest has been paid on this Note or its predecessor note (or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next interest payment date, from such interest payment date) or, if no interest has been paid, from the Issue Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Company will pay interest on overdue principal, premium, if any, and interest at the rate applicable to this Note. Interest not paid when due and any interest on principal, premium or interest not paid when due will be paid to the Persons that are Holders on a special record date, which will be the 15th day preceding the date fixed by the Company for the payment of such interest, whether or not such day is a Business Day. At least 15 days before a special record date, the Company will send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of interest to be paid.
| 2. | Indenture. |
This is one of the Notes issued under an Indenture dated as of June 18, 2020 (as amended from time to time, the “Indenture”), among the Company, the Parent and Wells Fargo Bank, National Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and, to the extent applicable, those specifically made
| 1 | Include for any Note to which the Registration Rights Agreement is applicable. |
Exhibit A- 4
part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.
The Notes are general unsecured obligations of the Company. The Indenture limits the original aggregate principal amount of the Notes to $500,000,000, but Additional Notes may be issued pursuant to the Indenture, and the originally issued Notes and all such Additional Notes vote together for all purposes as a single class. This Note is guaranteed by the Parent, as set forth in the Indenture.
| 3. | Redemption and Repurchase; Discharge Prior to Redemption or Maturity. |
This Note is subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. There is no sinking fund or mandatory redemption applicable to this Note.
If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued and unpaid interest on the Notes to redemption or maturity, the Company may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of its obligations under certain provisions of the Indenture.
| 4. | Registered Form; Denominations; Transfer; Exchange. |
The Notes are in registered form without interest coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note.
| 5. | Defaults and Remedies. |
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Company or any of its significant subsidiaries) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes may, by written notice, require the Company to repay immediately the entire principal amount of the outstanding Notes, together with all accrued and unpaid interest. If a bankruptcy Event of Default with respect to the Company or any of its significant subsidiaries occurs and is continuing, then the entire principal amount of the outstanding Notes will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is in their interest.
Exhibit A- 5
| 6. | Amendment and Waiver. |
Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company and the Trustee may under certain circumstances amend or supplement the Indenture or the Notes.
| 7. | Authentication. |
This Note is not valid until the Trustee (or Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
| 8. | Governing Law. |
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
| 9. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).
The Company will furnish a copy of the Indenture to any Holder upon written request and without charge.
Exhibit A- 6
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Company with full power of substitution in the premises.
Exhibit A- 7
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED LEGEND]
In connection with any transfer of this Note occurring prior to June 18, 2021, the undersigned confirms that such transfer is made without utilizing any general solicitation or general advertising and further as follows:
Check One
| ☐ | (1) This Note is being transferred to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended, and certification in the form of Exhibit F to the Indenture is being furnished herewith. |
| ☐ | (2) This Note is being transferred to a Non-U.S. Person in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder, and certification in the form of Exhibit E to the Indenture is being furnished herewith. |
or
| ☐ | (3) This Note is being transferred other than in accordance with (1) or (2) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. |
If none of the foregoing boxes is checked, the Trustee is not obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Indenture have been satisfied.
| Date: |
||||||
| Seller |
||||||
| By: |
||||||
| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. | ||||||
Signature Guarantee: 2 ___________________________________________
| 2 | Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
Exhibit A- 8
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all of this Note purchased by the Company pursuant to Section 4.10 of the Indenture, check the box: ☐
If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.10 of the Indenture, state the amount (in original principal amount) below:
$
| Date: | ||||||
| Your Signature: | ||||||
| (Sign exactly as your name appears on the other side of this Note) | ||||||
| Signature Guarantee: 3 | ||||||
| 3 | Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
Exhibit A- 9
SCHEDULE OF EXCHANGES OF NOTES 1
The initial outstanding principal amount of this Global Note is $[ ]. The following exchanges of a part of this Global Note for Certificated Notes or a part of another Global Note have been made:
| Date of Exchange |
Amount of decrease |
Amount of increase |
Principal amount of |
Signature of |
Exhibit A- 10
EXHIBIT B
SUPPLEMENTAL INDENTURE
dated as of ,
among
SEAGATE HDD CAYMAN,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
and
The Guarantors Party Hereto
4.091% Senior Notes due 2029
Exhibit B- 1
THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as of , , among SEAGATE HDD CAYMAN, an exempted limited liability company organized under the laws of the Cayman Islands (the “Company”), [insert each Guarantor executing this Supplemental Indenture and its jurisdiction of incorporation or organization] (collectively “Undersigned”) and Wells Fargo Bank, National Association, a national banking association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company, Parent and the Trustee entered into the Indenture, dated as of June 18, 2020 (the “Indenture”), relating to the Company’s 4.091% Senior Notes due 2029 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances a Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary shall unconditionally Guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Undersigned, the Company, the Parent and the Trustee mutually covenant and agree for the equal and ratable benefit of Holders as follows:
| 1. | Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. |
| 2. | Guarantee. The Undersigned hereby agrees to become a party to the Indenture as a Guarantor and shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The Undersigned agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements as follows: |
| (a) | Subject to the provisions of this Supplemental Indenture, the Undersigned hereby irrevocably and unconditionally Guarantees on an unsecured unsubordinated basis, the full and punctual payment (whether at stated maturity, upon redemption, purchase pursuant to an offer to purchase or acceleration, or otherwise) of the principal of, interest on and all other amounts payable under, each Note, and the full and punctual payment of all other amounts payable by the Company under the Indenture in respect of the Notes. Upon failure by the Company to pay punctually any such amount, each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in the Indenture. |
| (b) | The obligations of the Undersigned hereunder are unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged or otherwise affected by: |
| 1. | any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under the Indenture or any Note, by operation of law or otherwise; |
Exhibit B- 2
| 2. | any modification or amendment of or supplement to the Indenture or any Note; |
| 3. | any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in the Indenture or any Note; |
| 4. | the existence of any claim, set-off or other rights which the Undersigned may have at any time against the Company, the Trustee or any other Person, whether in connection with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim; |
| 5. | any invalidity or unenforceability relating to or against the Company for any reason of the Indenture or any Note, or any provision of applicable law or regulation purporting to prohibit the payment by the Company of the principal of or interest on any Note or any other amount payable by the Company under the Indenture; or |
| 6. | any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Undersigned’s obligations hereunder. |
| (c) | Except as otherwise provided in the Indenture, the Undersigned’s obligations hereunder will remain in full force and effect until the principal of and interest on the Notes and all other amounts payable by the Company under the Indenture have been paid in full. If at any time any payment of the principal of or interest on any Note or any other amount payable by the Company under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Undersigned’s obligations hereunder with respect to such payment will be reinstated as though such payment had been due but not made at such time. |
| (d) | The Undersigned irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company or any other Person. |
| (e) | Upon making any payment with respect to any obligation of the Company under this Article, the Undersigned will be subrogated to the rights of the payee against the Company with respect to such obligation, provided that the Undersigned may not enforce either any right of subrogation, or any right to receive payment in the nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so long as any amount payable by the Company hereunder or under the Notes remains unpaid. |
| (f) | If acceleration of the time for payment of any amount payable by the Company under the Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Undersigned hereunder forthwith on demand by the Trustee or the Holders. |
Exhibit B- 3
| (g) | Notwithstanding anything to the contrary in this Supplemental Indenture, the Undersigned, and by its acceptance of Notes, each Holder, confirms that it is the intention of all such parties that the Note Guarantee of the Undersigned not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law. To effectuate that intention, the Trustee, the Holders and the Undersigned irrevocably agree that the obligations of the Undersigned under its Note Guarantee are limited to the maximum amount that would not render the Undersigned’s obligations subject to avoidance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law. |
| 3. | Enforceability. The execution of this Supplemental Indenture shall constitute a legal, valid and binding obligation of each of the Company and Parent, enforceable against it in accordance with its terms. |
| 4. | Notation not Required. Neither the Company nor the Undersigned shall be required to make a notation on the Securities to reflect the Note Guarantee or any release, termination or discharge thereof. |
| 5. | Governing Law. The laws of the State of New York shall govern this Supplemental Indenture. |
| 6. | Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, electronic signature, or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by electronic signature, facsimile or PDF shall be deemed to be their original signatures for all purposes. |
| 7. | Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. |
| 8. | The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Undersigned, the Company and Parent. |
| 9. | Successors. All agreements of the Undersigned in the Indenture, this Supplemental Indenture and the Note Guarantee shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors. |
| 10. | No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Supplemental Indenture shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and are not exclusive of any other rights, remedies or benefits which either may have under this Supplemental Indenture at law, in equity, by statute or otherwise. |
Exhibit B- 4
| 11. | Modification. No modification, amendment or waiver of any provision of this Supplemental Indenture, nor the consent to any departure by the Undersigned therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Undersigned in any case shall entitle the Undersigned to any other or further notice or demand in the same, similar or other circumstance. |
Exhibit B- 5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| SEAGATE HDD CAYMAN, as Company | ||
| By: | ||
| Name: | ||
| Title: | ||
| [GUARANTOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit B- 6
EXHIBIT C
RESTRICTED LEGEND
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT IT IS NOT AN “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF SEAGATE TECHNOLOGY PLC AND (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “ QIB ”), OR (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN EXCEPT (A) TO SEAGATE TECHNOLOGY PLC, THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER AND THE TRUSTEE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTIONS” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
Exhibit C- 1
EXHIBIT D
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.
Exhibit D- 1
EXHIBIT E
Regulation S Certificate
WELLS FARGO BANK, NATIONAL ASSOCIATION
Wells Fargo Bank, National Association
as Trustee and Registrar — DAPS Reorg.
MAC N9300-070
600 South Fourth Street
Minneapolis, MN 55415
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: [email protected]
| Re: | SEAGATE HDD CAYMAN 4.091% Senior Notes due June 1, 2029 (the “Notes”) issued under the Indenture (the “Indenture”) dated as of June 18, 2020 relating to the Notes |
Ladies and Gentlemen:
Terms are used in this Certificate as used in Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), except as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
☐ A. This Certificate relates to our proposed transfer of $[ ] principal amount of Notes issued under the Indenture. We hereby certify as follows:
| 1. | The offer and sale of the Notes was not and will not be made to a person in the United States (unless such person is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3)) and such offer and sale was not and will not be specifically targeted at an identifiable group of U.S. citizens abroad. |
| 2. | Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States. |
| 3. | Neither we, any of our affiliates, nor any person acting on our or their behalf has made any directed selling efforts in the United States with respect to the Notes. |
| 4. | The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
Exhibit E- 1
| 5. | If we are a dealer or a person receiving a selling concession, fee or other remuneration in respect of the Notes, and the proposed transfer takes place during the Restricted Period (as defined in the Indenture), or we are an officer or director of the Parent, the Company or any of its Subsidiaries or an Initial Purchaser (each as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S. |
☐ B. This Certificate relates to our proposed exchange of $[ ] principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. We hereby certify as follows:
| 1. | At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad. |
| 2. | Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and we did not pre-arrange the transaction in the United States. |
| 3. | The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby
| Very truly yours, | ||
| [NAME OF SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
| Date: | ||
Exhibit E- 2
EXHIBIT F
Rule 144A Certificate
WELLS FARGO BANK, NATIONAL ASSOCIATION
Wells Fargo Bank, National Association
as Trustee and Registrar — DAPS Reorg.
MAC N9300-070
600 South Fourth Street
Minneapolis, MN 55415
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: [email protected]
| Re: | SEAGATE HDD CAYMAN 4.091% Senior Notes due June 1, 2029 (the “Notes”) issued under the Indenture (the “Indenture”) dated as of June 18, 2020 relating to the Notes |
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐ A. Our proposed purchase of $[ ] principal amount of Notes issued under the Indenture.
☐ B. Our proposed exchange of $[ ] principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.
We and, if applicable, each account for which we are acting in the aggregate owned and invested more than $100,000,000 in securities of Companies that are not affiliated with us (or such accounts, if applicable), as of , 20 , which is a date on or since close of our most recent fiscal year. We and, if applicable, each account for which we are acting, are a qualified institutional buyer within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”). If we are acting on behalf of an account, we exercise sole investment discretion with respect to such account. We are aware that the transfer of Notes to us, or such exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to the date of this Certificate we have received such information regarding the Parent (as defined in the Indenture) as we have requested pursuant to Rule 144A(d)(4) or have determined not to request such information.
You and the Company (as defined in the Indenture) are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
| Very truly yours, | ||
Exhibit F- 1
| [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
| Date: | ||
Exhibit F- 2
EXHIBIT G
Institutional Accredited Investor Certificate
WELLS FARGO BANK, NATIONAL ASSOCIATION
Wells Fargo Bank, National Association
as Trustee and Registrar — DAPS Reorg.
MAC N9300-070
600 South Fourth Street
Minneapolis, MN 55415
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: [email protected]
| Re: | SEAGATE HDD CAYMAN 4.091% Senior Notes due June 1, 2029 (the “Notes”) issued under the Indenture (the “Indenture”) dated as of June 18, 2020 relating to the Notes |
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐ A. Our proposed purchase of $ principal amount of Notes issued under the Indenture.
☐ B. Our proposed exchange of $ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us.
We hereby confirm that:
| 1. | We are an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”) (an “Institutional Accredited Investor”). |
| 2. | Any acquisition of Notes by us will be for our own account or for the account of one or more other Institutional Accredited Investors as to which we exercise sole investment discretion. |
| 3. | We have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of an investment in the Notes and we and any accounts for which we are acting are able to bear the economic risks of and an entire loss of our or their investment in the Notes. |
| 4. | We are not acquiring the Notes with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary will remain at all times within our and their control. |
Exhibit G- 1
| 5. | We acknowledge that the Notes have not been registered under the Securities Act and that the Notes may not be offered or sold within the United States or to or for the benefit of U.S. persons except as set forth below. |
| 6. | The principal amount of Notes to which this Certificate relates is at least equal to $250,000. |
We agree for the benefit of the Company (as defined in the Indenture), on our own behalf and on behalf of each account for which we are acting, that such Notes may be offered, sold, pledged or otherwise transferred only in accordance with the Securities Act and any applicable securities laws of any State of the United States and only (a) to the Company, the Parent or any of its Subsidiaries (each as defined in the Indenture), (b) pursuant to a registration statement which has become effective under the Securities Act, (c) to a qualified institutional buyer in compliance with Rule 144A under the Securities Act, (d) in an offshore transaction in compliance with Rule 904 of Regulation S under the Securities Act, (e) in a principal amount of not less than $250,000, to an Institutional Accredited Investor that, prior to such transfer, delivers to the Trustee (as defined in the Indenture) a duly completed and signed certificate (the form of which may be obtained from the Trustee) relating to the restrictions on transfer of the Notes or (f) pursuant to an exemption from registration provided by Rule 144 under the Securities Act or any other available exemption from the registration requirements of the Securities Act.
Prior to the registration of any transfer in accordance with (c) or (d) above, we acknowledge that a duly completed and signed certificate (the form of which may be obtained from the Trustee) must be delivered to the Trustee. Prior to the registration of any transfer in accordance with (e) or (f) above, we acknowledge that the Company reserves the right to require the delivery of such legal opinions, certifications or other evidence as may reasonably be required in order to determine that the proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. We acknowledge that no representation is made as to the availability of any Rule 144 exemption from the registration requirements of the Securities Act.
We understand that the Trustee will not be required to accept for registration of transfer any Notes acquired by us, except upon presentation of evidence satisfactory to the Company and the Trustee that the foregoing restrictions on transfer have been complied with. We further understand that the Notes acquired by us will be in the form of definitive physical certificates and that such certificates will bear a legend reflecting the substance of the preceding paragraph. We further agree to provide to any person acquiring any of the Notes from us a notice advising such person that resales of the Notes are restricted as stated herein and that certificates representing the Notes will bear a legend to that effect.
We agree to notify you promptly in writing if any of our acknowledgments, representations or agreements herein ceases to be accurate and complete.
We represent to you that we have full power to make the foregoing acknowledgments, representations and agreements on our own behalf and on behalf of any account for which we are acting.
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Exhibit G- 2
| Very truly yours, | ||
| [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
Date:
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
By:
Date:
Taxpayer ID number:
Exhibit G- 3
EXHIBIT H
[COMPLETE FORM I OR FORM II AS APPLICABLE.]
[FORM I]
Certificate of Beneficial Ownership
To: WELLS FARGO BANK, NATIONAL ASSOCIATION
Wells Fargo Bank, National Association
as Trustee and Registrar — DAPS Reorg.
MAC N9300-070
600 South Fourth Street
Minneapolis, MN 55415
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: [email protected]
OR
[Name of DTC Participant]
| Re: | SEAGATE HDD CAYMAN 4.091% Senior Notes due June 1, 2029 (the “Notes”) issued under the Indenture (the “Indenture”) dated as of June 18, 2020 relating to the Notes |
Ladies and Gentlemen:
We are the beneficial owner of $ principal amount of Notes issued under the Indenture and represented by a Temporary Offshore Global Note (as defined in the Indenture).
We hereby certify as follows:
[CHECK A OR B AS APPLICABLE.]
☐ A. We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended).
☐ B. We are a U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended) that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.
You and the Company (as defined in the Indenture) are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Exhibit H- 1
| Very truly yours, | ||
| [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
Date:
Exhibit H- 2
[FORM II]
Certificate of Beneficial Ownership
To: WELLS FARGO BANK, NATIONAL ASSOCIATION
Wells Fargo Bank, National Association
as Trustee and Registrar — DAPS Reorg.
MAC N9300-070
600 South Fourth Street
Minneapolis, MN 55415
Telephone No.: (877) 872-4605
Fax No.: (866) 969-1290
Email: [email protected]
| Re: | SEAGATE HDD CAYMAN 4.091% Senior Notes due June 1, 2029 (the “Notes”) issued under the Indenture (the “Indenture”) dated as of June 18, 2020 relating to the Notes |
Ladies and Gentlemen:
This is to certify that based solely on certifications we have received in writing, by tested telex or by electronic transmission from Institutions appearing in our records as persons being entitled to a portion of the principal amount of Notes represented by a Temporary Offshore Global Note issued under the above-referenced Indenture, that as of the date hereof, $ principal amount of Notes represented by the Temporary Offshore Global Note being submitted herewith for exchange is beneficially owned by persons that are either (i) non-U.S. persons (within the meaning of Regulation S under the Securities Act of 1933, as amended) or (ii) U.S. persons that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.
We further certify that (i) we are not submitting herewith for exchange any portion of such Temporary Offshore Global Note excepted in such certifications and (ii) as of the date hereof we have not received any notification from any Institution to the effect that the statements made by such Institution with respect to any portion of such Temporary Offshore Global Note submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.
You and the Company (as defined in the Indenture) are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
| Yours faithfully | ||
| [Name of DTC Participant] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
Date:
Exhibit H- 3
EXHIBIT I
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR CERTIFICATED NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.
UPON THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THIS TEMPORARY GLOBAL NOTE SHALL BE DEEMED TO BE A PERMANENT GLOBAL NOTE.
Exhibit I-1
Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
4.091% SENIOR NOTES DUE 2029
Dated June 18, 2020
among
SEAGATE HDD CAYMAN
SEAGATE TECHNOLOGY PLC
and
MORGAN STANLEY & CO. LLC
BOFA SECURITIES, INC.,
as the Lead Dealer Managers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into this 18th day of June, 2020 among Seagate HDD Cayman, an exempted limited liability company incorporated under the laws of the Cayman Islands (the “Company”), Seagate Technology plc, a public limited company organized under the laws of Ireland (the “Parent”), and Morgan Stanley & Co. LLC and BofA Securities, Inc., as the lead dealer managers (each a “Lead Dealer Manager” and collectively, the “Lead Dealer Managers”) named in the Amended and Restated Dealer Manager Agreement, dated as of June 3, 2020 (the “Dealer Manager Agreement”), among the Company, the Parent, the Lead Dealer Managers, and Scotia Capital (USA) Inc., Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., Mizuho Securities USA LLC, Samuel A. Ramirez & Company, Inc. and U.S. Bancorp Investments, Inc. as co-dealer managers (the “Co-Dealer Managers” and, together with the Lead Dealer Managers, the “Dealer Managers”) , relating to the Exchange Offers (as defined below).
The Company has made separate offers to exchange (i) up to $275,000,000 aggregate principal amount of its outstanding 4.75% Senior Notes due 2025 and (ii) up to $300,000,000 aggregate principal amount of its outstanding 4.875% Senior Notes due 2027, each for up to $500,000,000 aggregate principal amount of its Senior Notes due 2029 (the “Notes”). The Notes will be unconditionally guaranteed as to the payment of principal and interest by the Parent (such guarantee, the “Guarantee,” and the Notes together with the Guarantee, the “Securities”). In connection with the Dealer Manager Agreement, the Company and the Parent have agreed to provide to the Holders of the Notes and their direct and indirect transferees the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall have the following meanings:
“1933 Act” shall mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Additional Interest” shall have the meaning set forth in Section 2(d).
“Company” shall have the meaning set forth in the preamble and shall also include the Company’s successors.
“Dealer Manager Agreement” shall have the meaning set forth in the preamble.
“Early Settlement Date” shall mean the Early Settlement Date as defined in the Dealer Manager Agreement.
“Exchange Offer” shall mean the exchange offer by the Company of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the 1933 Act effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Exchange Securities” shall mean securities issued by the Company under the Indenture containing terms identical to the Securities (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Securities or, if no such interest has been paid, from the Issue Date and (ii) the Exchange Securities will not contain restrictions on transfer) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
“Freely Transferable” shall mean, with respect to any Security, the time at which (i) such Security may be sold to the public pursuant to Rule 144 under the 1933 Act by a person that is not an “affiliate” (as defined in Rule 144 under the 1933 Act) of the Company without regard to any of the conditions specified therein (other than the holding period requirement in paragraph (d) of Rule 144 so long as such holding period requirement is satisfied at such time of determination) and (ii) either (A) such Security does not bear any restrictive legends relating to the 1933 Act or (B) the Company has advised the Holder of such Security that upon presentation of adequate proof of non-affiliate status, such legend would be removed.
“Guarantee” has the meaning set forth in the preamble.
“Holder” shall mean a holder of the Notes, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term “Holder” shall include Participating Broker-Dealers (as defined in Section 4(a)).
“Indenture” shall mean the Indenture relating to the Securities dated as of June 18, 2020 between the Company, the Parent and Wells Fargo Bank, National Association, as trustee, and as the same may be amended from time to time in accordance with the terms thereof.
“Issue Date” shall mean June 18, 2020.
“Issuer FWP” shall have the meaning set forth in Section 5(a).
“Lead Dealer Managers” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or any of its affiliates (as such term is defined in Rule 405 under the 1933 Act) (other than the Dealer Managers or subsequent Holders of Registrable Securities if such subsequent holders are deemed to be such affiliates solely by reason of their holding of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount.
“Parent” shall have the meaning set forth in the preamble, together with its successors.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including all material incorporated by reference therein.
“Registrable Securities” shall mean the Securities; provided, however, that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities shall have been declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to such Registration Statement, (ii) when such Securities have been sold to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) when such Securities have become Freely Transferable, or (iv) when such Securities shall have ceased to be outstanding.
“Registration Default” shall have the meaning set forth in Section 2(d) hereof.
“Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the Company and the Parent with this Agreement, including without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory Authority registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with blue sky qualification of any of the Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the reasonable fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and the Parent and, in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Dealer Managers) and (viii) the fees and disbursements of the independent public accountants of the Company and the Parent, including the expenses of any special audits or “cold comfort” letters required by or incident to such performance and compliance, but excluding fees and expenses of counsel to the underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Company and the Parent that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“SEC” shall mean the Securities and Exchange Commission.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and the Parent pursuant to the provisions of Section 2(b) hereof which covers all of the Registrable Securities (but no other securities unless approved by the Holders whose Registrable Securities are covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post- effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3 hereof.
“Underwritten Registration” or “Underwritten Offering” shall mean a registration in which Registrable Securities are sold to an Underwriter for reoffering to the public.
2. Registration under the 1933 Act.
(a) If any Registrable Securities are outstanding as of the 366th calendar day following the Issue Date, then to the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company and the Parent shall use their commercially reasonable efforts to (i) prepare and file with the SEC, an Exchange Offer Registration Statement on an appropriate form under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to the Holders, in exchange for such Registrable Securities, of Exchange Securities, (ii) cause the Exchange Offer Registration Statement to become or be declared effective under the 1933 Act, and (iii) cause the Exchange Offer to be consummated on or prior to the 451st calendar day following the Issue Date. The Company and the Parent shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company and the Parent shall:
(i) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and the Parent and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder.
The Company and the Parent shall use their commercially reasonable efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Parent shall inform the Dealer Managers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Dealer Managers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) If any Registrable Securities are outstanding as of the 366th calendar date after the Issue Date and (i) if, because of any changes in law, SEC rules or regulations or applicable interpretations thereof by the staff of the SEC, neither the Company nor the Parent is permitted to effect the Exchange Offer as contemplated by Section 2(a) above, (ii) for any other reason the Exchange Offer is not consummated within 451 calendar days of the Issue Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Dealer Managers a Registration Statement must be filed and a Prospectus must be delivered by the Dealer Managers in connection with any offering or sale of Registrable Securities, the Company and the Parent will, at their cost, as promptly as reasonably practicable, and in any event on or prior to the 30th calendar day after such obligation arises, but in no event earlier than the 451st calendar day after the Issue Date, use their commercially reasonable efforts to cause to be filed a Shelf Registration Statement providing for the
sale by the Holders of all of such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC on or prior to the 40th calendar day after such filing. In the event the Company and the Parent are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (b) of the preceding sentence, the Company and the Parent shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Dealer Managers after completion of the Exchange Offer. The Company and the Parent agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years after the Issue Date with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are Freely Transferable or cease to be outstanding. The Company and the Parent further agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Parent for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as practicable thereafter. The Company and the Parent agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Parent shall pay all Registration Expenses in connection with any registration required pursuant to Section 2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that any Registrable Securities are outstanding as of the 366th calendar day after the Issue Date and either (i) the Exchange Offer is not consummated on or prior to the 451st calendar day following the Issue Date, (ii) a Shelf Registration Statement applicable to such Registrable Securities, if required pursuant to Section 2(b), is not filed or declared effective when required pursuant to Section 2(b) or (iii) a Shelf Registration Statement applicable to such Registrable Securities, if required pursuant to Section 2(b), is declared effective as required but thereafter fails to remain effective or usable in connection with resales for more than 60 calendar days in the aggregate in any twelve month period (each such event referred to in clauses (i) through (iii) above, a “Registration Default”), additional interest (“Additional Interest”), payable in cash, will accrue on such Registrable Securities at a rate of 0.25% per annum for the first 90- day period immediately following the occurrence of a Registration Default, with such Additional Interest to be increased by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum Additional Interest rate of 1.00% per annum, provided that any such Additional Interest shall cease to accrue on any Registrable Security upon the earlier of (A) the date on which all Registration Defaults with respect to such Registrable Security have been cured or (B) the date on which such Registrable Security ceases to be a Registrable Security.
3. Registration Procedures.
In connection with the obligations of the Company and the Parent with respect to any Registration Statement pursuant to Section 2(a) and Section 2(b) hereof, the Company shall as promptly as practicable and to the extent required hereby:
(a) prepare and file with the SEC a Registration Statement on the appropriate form under the 1933 Act, which form (x) shall be selected by the Company and the Parent, (y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post- effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the period required pursuant to Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
(c) keep each Prospectus current during the period described under Section 4(3) of, and Rule 174 under, the 1933 Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;
(d) in the case of a Shelf Registration, furnish to any Holder of Registrable Securities, to counsel for the Dealer Managers, to counsel for the Holders and to any Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder or Underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; and each of the Company and the Parent consents to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders of Registrable Securities and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus or any amendment or supplement thereto in accordance with applicable law;
(e) use its commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or “blue sky” laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement shall reasonably request in writing by the time the applicable Registration Statement is declared effective by the SEC, cooperate with such Holders in connection with any filings required to be made with the Financial Industry Regulatory Authority and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of the Registrable Securities owned by such Holder; provided, however, that the Company and the Parent shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (ii) file any general consent to service of process or (iii) subject itself to taxation in any such jurisdiction if it is not so subject;
(f) in the case of a Shelf Registration, notify each Holder of Registrable Securities, counsel for the Holders and counsel for the Dealer Managers promptly and, if requested by any such Holder or counsel, confirm such notification in writing (i) when a Registration Statement has become effective and when any post-effective amendment thereto has been filed and becomes effective, (ii) of any request by the SEC or any state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company and the Parent contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering cease to be true and correct in all material respects or if the Company or the Parent receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (v) of the happening of any event during the period a Shelf Registration Statement is effective which makes any statement made in such Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement or Prospectus in order to make the statements therein not misleading and (vi) of any determination by the Company or the Parent that a post-effective amendment to a Registration Statement would be appropriate;
(g) make every commercially reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement as promptly as practicable and provide prompt notice to each Holder of the withdrawal of any such order;
(h) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(i) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders may reasonably request at least one business day prior to the closing of any sale of Registrable Securities;
(j) in the case of a Shelf Registration, upon the occurrence of any event contemplated by Section 3(f) hereof, use its commercially reasonable efforts to prepare and file with the SEC a supplement or post- effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Registration Statement and the related Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company and the Parent agree to notify the Holders to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend use of the Prospectus until the Company and the Parent have amended or supplemented the Prospectus to correct such misstatement or omission;
(k) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus after initial filing of a Registration Statement, provide copies of such document to the Dealer Managers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) and make such of the representatives of the Company as shall be reasonably requested by the Dealer Managers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) available for discussion of such document, and shall not at any time file or make any amendment to the Registration Statement, any Prospectus or any amendment of or supplement to a Registration Statement or a Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus, of which the Dealer Managers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Dealer Managers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) shall object;
(l) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement;
(m) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and execute, and use its commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, make available for inspection by a representative of the Holders of the Registrable Securities, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a reasonable manner, all financial and other records, pertinent documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with a Shelf Registration Statement;
(o) in the case of a Shelf Registration, use its commercially reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system, if any, on which similar securities issued by the Company are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements;
(p) use its commercially reasonable efforts to cause the Exchange Securities or Registrable Securities, as the case may be, to be rated by two nationally recognized statistical rating organizations (as such term is defined in Section 3(a)(62) of the 1934 Act);
(q) if reasonably requested by any Holder of Registrable Securities covered by a Registration Statement, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Company has received notification of the matters to be incorporated in such filing; and
(r) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (ii) obtain opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain “cold comfort” letters from the independent certified public accountants of the Company
(and, if necessary, any other certified public accountant of any subsidiary of the Company, or of any business acquired by the Company for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each selling Holder and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company made pursuant to clause (r) above and to evidence compliance with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require each Holder of Registrable Securities to furnish to the Company such information regarding the Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(f) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(j) hereof, and, if so directed by the Company, such Holder will deliver to the Company (at its expense) all copies in its possession, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the Company shall give any such notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Company shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions. The Company may give any such notice only twice during any 365 day period and any such suspensions may not exceed 30 days for each suspension and there may not be more than two suspensions in effect during any 365 day period.
The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the “Underwriters”) that will administer the offering will be selected by the Holders of a majority of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker- dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”), may be deemed to be an “underwriter” within the meaning of the 1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities.
The Company and the Parent understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligation under the 1933 Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this Agreement, the Company and the Parent agree that the provisions of this Agreement as they relate to a Shelf Registration shall also apply to an Exchange Offer Registration to the extent, and with such reasonable modifications thereto as may be, reasonably requested by the Dealer Managers or by one or more Participating Broker-Dealers, in each case as provided in clause (ii) below, in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company and the Parent shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement, as would otherwise be contemplated by Section 3(j) hereof, for a period exceeding 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 3 of this Agreement) and Participating Broker-Dealers shall not be authorized by the Company to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in Section 3 of this Agreement to an Exchange Offer Registration, to the extent not required by the positions of the Staff of the SEC or the 1933 Act and the rules and regulations thereunder, will be in conformity with the reasonable request to the Company and the Parent by the Dealer Managers or with the reasonable request in writing to the Company by one or more broker-dealers who certify to the Dealer Managers and the Company and the Parent in writing that they anticipate that they will be Participating Broker-Dealers; and provided further that, in connection with such application of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer Registration, the Company shall be obligated (x) to deal only with the entities representing the Participating Broker-Dealers, which shall be Morgan Stanley & Co. LLC and BofA Securities, Inc. unless either or both elect not to act as such representative, (y) to pay the fees and expenses of only one counsel representing the Participating Broker-Dealers, which shall be counsel to the Dealer Managers unless such counsel elects not to so act and (z) to cause to be delivered only one, if any, “cold comfort” letter with respect to the Prospectus in the form existing on the last Exchange Date and with respect to each subsequent amendment or supplement, if any, effected during the period specified in clause (i) above.
(c) The Dealer Managers shall have no liability to the Company or any Holder with respect to any request that it may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and the Parent, jointly and severally, agree to indemnify and hold harmless the Dealer Managers, each Holder of Registrable Securities included in any Registration Statement and each Person, if any, who controls Dealer Manager or any such Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control with, or is controlled by, any Dealer Manager or any such Holder, from and against all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by the Dealer Managers, any such Holder or any such controlling or affiliated Person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in such Registration Statement (or any amendment thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or caused by any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (as amended or supplemented if the Company and the Parent shall have furnished any
amendments or supplements thereto) or in any Preliminary Prospectus or “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act (“Issuer FWP”), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Dealer Managers or any Holder furnished to the Company and the Parent in writing by the Dealer Managers or any selling Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Company and the Parent will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the 1933 Act and the 1934 Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Parent, the Dealer Managers and the other selling Holders, and each of their respective directors, officers who sign the Registration Statement and each Person, if any, who controls the Company, any Dealer Managers and any other selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company and the Parent to the Dealer Managers and the Holders, but only with reference to information relating to such Holder furnished to the Company and the Parent in writing by such Holder expressly for use in any Registration Statement (or any amendment thereto), any Prospectus (or any amendment or supplement thereto) or Issuer FWP.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the “indemnified party”) shall promptly notify the Person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Dealer Managers and all Persons, if any, who control any Dealer Manager within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (B) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, the Parent, their directors, their officers who sign the Registration Statement and each Person, if any, who controls the Company or the Parent within the meaning of either such Section and (C) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Holders and all Persons, if any, who control any Holders within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In such case involving the Dealer Managers and Persons who control the Dealer Managers, such firm shall be designated in writing by the Lead Dealer Managers. In such case involving the Holders and such Persons who control Holders, such firm shall be designated in writing by the Majority Holders. In all other cases, such firm shall be designated by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b) of this Section 5 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company, the Parent and the Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company, the Parent or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to this Section 5(d) are several in proportion to the respective principal amount of Registrable Securities of such Holder that were registered pursuant to a Registration Statement.
(e) The Company, the Parent and each Holder agree that it would not be just or equitable if contribution pursuant to this Section 5 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, no Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which Registrable Securities were sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Dealer Managers, any Holder or any Person controlling any Dealer Manager or any Holder, or by or on behalf of the Company, the Parent, their officers or directors or any Person controlling the Company or the Parent, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the Parent has not entered into, and on or after the date of this Agreement will not enter into, any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company’s or the Parent’s other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company and the Parent have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided, however, that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Dealer Managers, the address set forth in the Dealer Manager Agreement; and (ii) if to the Company, initially at the Company’s address set forth in the Dealer Manager Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Dealer Manager Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Dealer Managers (in their capacity as Dealer Managers) shall have no liability or obligation to the Company with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and shall use its commercially reasonable efforts to cause its affiliates (as defined in Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements made hereunder among the Company and the Parent, on the one hand, and the Dealer Managers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) Consent to Jurisdiction; Appointment of Agent for Service of Process. The Company and the Parent, jointly and severally, agree that:
(i) Any suit, action or proceeding against the Company or Parent arising out of or relating to this Agreement may be instituted in any state or U.S. federal court in the Borough of Manhattan, The City of New York, New York, and any appellate court from any thereof, and the Company and each Parent irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Parent irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action or proceeding that may be brought in connection with this Agreement, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Parent and may be enforced in any court to the jurisdiction of which the Company or the Parent is subject by a suit upon such judgment; provided that service of process is effected upon the Company or the Parent in the manner provided by this Section 6(h).
(ii) The Company and the Parent each hereby appoint Seagate Technology (US) Holdings, Inc., located at 10200 South DeAnza Boulevard, Cupertino, CA 95014 Attn: Stephen J. Luczo, Chief Executive Officer and Chairman, as its authorized agent (the “Authorized Agent”), upon whom process may be served in any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated herein which may be instituted in any state or U.S. federal court in the Borough of Manhattan, The City of New York, New York, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Authorized Agent hereby accepts such appointment and agrees to act as said agent for service of process. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company and the Parent. Notwithstanding the foregoing, any action involving the Company or the Parent arising out of or relating to this Agreement may be instituted in any court of competent jurisdiction in any other jurisdiction.
(iii) Any action, suit or proceeding brought by the Company and the Parent against the Holders arising out of or based upon this Agreement and the transactions contemplated herein shall be brought solely in a U.S. federal or state court in the Borough of Manhattan, The City of New York, New York, and the Company and the Parent shall not initiate or seek to initiate, in any other jurisdiction other than in such New York courts, any action, suit or proceeding against the Holders arising out of or based upon this Agreement and the transactions contemplated herein. The foregoing shall apply, without limitation, to any action seeking to obtain any injunction or declaratory judgment against the enforcement of, or a declaratory judgment concerning, any claim by the Holders in respect of this Agreement and any transaction contemplated herein, and any action challenging the enforceability of or seeking to invalidate in any respect the submission by the Company and the Parent hereunder to the jurisdiction of such New York courts or the designation, pursuant to this Section 6(g), of the laws of the State of New York as the law applicable to this Agreement.
(iv) The provisions of this Section 6(g) shall survive any termination or cancellation of this Agreement.
(h) Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Dealer Managers or Holders, as the case may be, could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company and the Parent with respect to any sum due from it to any Dealer
Manager or Holder or any person controlling any Dealer Manager or Holder shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Dealer Manager or Holder or controlling person of any sum in such other currency, and only to the extent that such Dealer Manager or Holder or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Dealer Manager or Holder or controlling person hereunder, the Company and the Parent, jointly and severally, agree as a separate obligation and notwithstanding any such judgment, to indemnify such Dealer Manager or Holder or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Dealer Manager or Holder or controlling person hereunder, such Dealer Manager or Holder or controlling person agrees to pay to the Company and Parent an amount equal to the excess of the dollars so purchased over the sum originally due to such Dealer Manager or Holder or controlling person hereunder.
(i) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(j) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. This Agreement shall be governed by the laws of the State of New York.
(l) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| SEAGATE HDD CAYMAN | ||||
| By: | /s/ Walter Chang | |||
| Name: Walter Chang | ||||
| Title: Treasurer | ||||
| SEAGATE TECHNOLOGY PLC | ||||
| By: | /s/ Gianluca Romano | |||
| Name: Gianluca Romano | ||||
| Title: Executive Vice President and Chief Financial Officer | ||||
[Signature Page to the 2029 Notes Registration Rights Agreement]
Confirmed and accepted as of
the date first above written:
| MORGAN STANLEY & CO. LLC | ||
| By: |
/s/ David Parsons | |
| Name: David Parsons | ||
| Title: Managing Director | ||
| BOFA SECURITIES, INC. | ||
| By: |
/s/ Laurie Campbell | |
| Name: Laurie Campbell | ||
| Title: Managing Director | ||
[Signature Page to the 2029 Notes Registration Rights Agreement]
Exhibit 99.1
June 16, 2020
Seagate Announces the Early Tender Results for Certain Outstanding Debt Securities
Fremont CA – June 16, 2020 - Seagate HDD Cayman (the “Company”), a subsidiary of Seagate Technology plc (NASDAQ: STX), today announced the early tender results for its previously announced cash tender offers (each, a “Tender Offer” and, collectively, the “Tender Offers”) for (i) up to an aggregate principal amount of $275,000,000 (the “2022 Note Cap”) of its 4.250% Senior Notes due 2022 (the “2022 Notes”) and (ii) up to an aggregate principal amount of $225,000,000 (the “2023 Note Cap” and, together with the 2022 Note Cap, the “Tender Caps”) of its 4.750% Senior Notes due 2023 (the “2023 Notes” and together with the 2022 Notes, the “Notes”, and each a “series” of Notes) up to a maximum aggregate principal amount of $500,000,000 (the “Maximum Tender Amount”), from each registered holder of the Notes (individually, a “Holder” and collectively, the “Holders”).
The terms and conditions of the Tender Offers are described in the Offer to Purchase dated June 3, 2020 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal”).
As of the previously announced early tender date and time of 5:00 p.m., New York City time, on June 16, 2020 (the “Early Tender Deadline”), the aggregate principal amount of each series of Notes set forth in the table below has been validly tendered and not validly withdrawn in the Tender Offers:
| Title of |
CUSIP Number |
Principal Amount Outstanding |
Tender Cap (Principal Amount) |
Aggregate Principal Amount Tendered |
Notes Accepted | |||||
| 4.250% Senior Notes due 2022 |
81180WAV3 | $477,435,000 | $275,000,000 | $247,759,000 | $247,759,000 | |||||
| 4.750% Senior Notes due 2023 |
81180WAH4 | $723,788,000 | $225,000,000 | $174,276,000 | $174,276,000 |
Because the outstanding aggregate principal amounts of the 2022 Notes and the 2023 Notes validly tendered and not validly withdrawn prior to the Early Tender Deadline do not exceed the applicable Tender Cap, neither series of such Notes that have been tendered prior to the Early Tender Deadline will be subject to proration. Any of the 2022 Notes or the 2023 Notes validly tendered after the Early Tender Deadline and on or prior to the Expiration Date (as defined below) may be subject to proration, if the total amount of the Notes tendered for such series of Notes exceeds the applicable Tender Cap.
Holders of Notes validly tendered and not validly withdrawn on or prior to the Early Tender Deadline will be eligible to receive the relevant Total Consideration (as defined in the Offer to Purchase), which includes an early tender premium of $50.00 per $1,000 principal amount of Notes validly tendered by such Holders and accepted for purchase by the Company. In addition to the applicable Total Consideration, all Holders of a series of Notes accepted for purchase will also receive, in cash, all applicable accrued and unpaid interest rounded to the nearest cent, on such $1,000 principal amount of such series of Notes, from the last applicable interest payment date up to, but not including, the Early Settlement Date (as defined below).
The Company’s obligation to accept for purchase and to pay for the Notes validly tendered in each Tender Offer is subject to the satisfaction or waiver of certain conditions, as described in the Offer to Purchase.
The settlement date for the Notes accepted by the Company in connection with the Early Tender Deadline is expected to be on June 18, 2020 (the “Early Settlement Date”).
Each Tender Offer will expire at 11:59 p.m., New York City time, on June 30, 2020 (the “Expiration Date”), or any other date and time to which the Company extends such Tender Offer, unless earlier terminated. Tenders of the Notes in the Tender Offers may no longer be withdrawn, except in certain limited circumstances where additional withdrawal rights are required by law. Holders of the Notes validly tendered after the Early Tender Deadline and on or prior to the Expiration Date will be eligible to receive the relevant Tender Offer Consideration (as defined in the Offer to Purchase).
The Company reserves the absolute right, subject to applicable law, to: (i) waive any or all conditions to the Tender Offers; (ii) extend or terminate each Tender Offer; (iii) increase or eliminate the Maximum Tender Amount or increase, decrease or eliminate any or all of the Tender Caps without extending the Early Tender Deadline or the Withdrawal
Deadline (as defined in the Offer to Purchase); or (iv) otherwise amend the Tender Offers in any respect. The Company may amend or modify a Tender Offer, or extend the Early Tender Deadline, Withdrawal Deadline, Early Settlement Date, Expiration Date, or Final Settlement Date (as defined in the Offer to Purchase) with respect to a Tender Offer, without amending or modifying or extending such deadline or date with respect to the other Tender Offers.
Information Relating to the Tender Offers
Morgan Stanley and BofA Securities are acting as the dealer managers for the Tender Offers. The information agent and tender agent for the Tender Offers is Global Bondholder Services Corp. Copies of the Offer to Purchase, Letter of Transmittal, and related offering materials are available by contacting Global Bondholder Services Corp. at (866) 470-4300 (toll-free) or (212) 430-3774 (banks and brokers). Questions regarding the Tender Offers should be directed to Morgan Stanley at (212) 761-1057 (collect) or (800) 624-1808 (toll-free) and BofA Securities at (980) 387-3907 (collect) or (888) 292-0070 (toll-free).
This press release shall not constitute an offer to sell, a solicitation to buy, or an offer to purchase or sell any securities. The Tender Offers are being made only pursuant to the Offer to Purchase and only in such jurisdictions as is permitted under applicable law.
About Seagate
Seagate crafts the datasphere, helping to maximize humanity’s potential by innovating world-class, precision-engineered data management solutions with a focus on sustainable partnerships.
© 2020 Seagate Technology LLC. All rights reserved. Seagate, Seagate Technology and the Spiral logo are registered trademarks of Seagate Technology LLC in the United States and/or other countries.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements provide current expectations of future events based on certain assumptions and include any statement that does not directly relate to any historical fact. Forward-looking statements include, among other things, statements about the cash tender offers for certain outstanding senior notes of the Company, and the Early Settlement Date. These forward-looking statements are conditioned upon and also involve a number of known and unknown risks, uncertainties and other factors that could cause actual results, performance or events to differ materially from those anticipated by these forward-looking statements. Such risks, uncertainties and other factors may be beyond the Company’s control and may pose a risk to the Company’s operating and financial condition. Undue reliance should not be placed on the forward-looking statements in this press release, which are based on information available to us on, and which speak only as of, the date hereof. The Company undertakes no obligation to update forward-looking statements to reflect events or circumstances after the date they were made, unless required by applicable law.
Exhibit 99.2
June 16, 2020
Seagate Announces Expiration of Early Exchange Period of Previously Announced Exchange Offers for Certain Outstanding Debt Securities
FREMONT, CA — June 16, 2020 - Seagate HDD Cayman (the “Company”), a subsidiary of Seagate Technology plc (NASDAQ: STX), today announced the expiration of the early exchange period in connection with its previously announced exchange offers (each, an “Exchange Offer” and together, the “Exchange Offers”) to certain eligible holders of the Company’s outstanding debt securities listed in the table below (together, the “Existing Notes” and each a “series” of Existing Notes) to exchange Existing Notes for up to $500,000,000 (“New Issue Cap”) in aggregate principal amount of the Company’s new senior notes due 2029 (the “New Notes”). The complete terms and conditions of the New Notes are set forth in a confidential offering memorandum, dated as of June 3, 2020, (the “Offering Memorandum”), and the related letter of transmittal.
In the Exchange Offers, according to information provided by Global Bondholder Services Corporation, the exchange agent for the Exchange Offers, $644,148,000 in aggregate principal amount of the Company’s Existing Notes were validly tendered and not validly withdrawn at or prior to 5:00 p.m., New York City time, on June 16, 2020 (the “Early Exchange Date”), as more fully set forth below.
The table below indicates, among other things, the principal amount of each series of Existing Notes validly tendered and not validly withdrawn as of the Early Exchange Date:
| CUSIP Numbers |
Existing Notes |
Principal Amount Outstanding |
Exchange Cap (Principal Amount) |
Acceptance Priority Level (1) |
Principal Amount Tendered by the Early Exchange Date | |||||
| 81180WAL5 |
4.750% Senior Notes due 2025 | $749,996,000 | $275,000,000 | 1 | $270,778,000 | |||||
| 81180WAR2 |
4.875% Senior Notes due 2027 |
$690,426,000 | $300,000,000 | 2 | $373,370,000 |
| (1) | All Existing Notes of a series tendered for exchange in the Exchange Offers on or before the Early Exchange Date will have priority over any Existing Notes of such series that are tendered after the Early Exchange Date. Acceptance of the Existing Notes is subject to the Acceptance Priority Level, relevant Exchange Cap and the New Issue Cap. |
Pricing for the Exchange Offers is expected to occur at approximately 10:00 a.m., New York City time, on June 17, 2020. Although the Exchange Offers are scheduled to expire at 11:59 p.m., New York City time, on June 30, 2020, since Existing Notes have been validly tendered such that the maximum aggregate principal amount of New Notes to be issued in exchange for all such tendered Existing Notes would exceed the New Issue Cap, the Company does not expect to accept for exchange any Notes tendered after the Early Exchange Date.
Tenders of Existing Notes in the Exchange Offers may no longer be withdrawn, except in certain limited circumstances where additional withdrawal rights are required by law. The Company’s obligation to accept for exchange the Existing Notes validly tendered in each Exchange Offer is subject to the satisfaction or waiver of certain conditions as described in the Offering Memorandum and the Company reserves the right to terminate any Exchange Offer for any reason or for no reason.
This press release does not constitute an offer or a solicitation by the Company to participate in the Exchange Offers and does not constitute an offer to sell or a solicitation of an offer to buy the New Notes, nor shall there be any sale of the New Notes in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. The New Notes have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws. The New Notes may not be offered or sold in the United States or to any “U.S. person” as defined in Rule 902 under the Securities Act except pursuant to an applicable exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Company will enter into a registration rights agreement with respect to the New Notes.
About Seagate
Seagate crafts the datasphere, helping to maximize humanity’s potential by innovating world-class, precision-engineered data management solutions with a focus on sustainable partnerships.
© 2020 Seagate Technology LLC. All rights reserved. Seagate, Seagate Technology and the Spiral logo are registered trademarks of Seagate Technology LLC in the United States and/or other countries.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements provide current expectations of future events based on certain assumptions and include any statement that does not directly relate to any historical fact. Forward-looking statements include, among other things, statements about the New Notes and the Exchange Offers. These forward-looking statements are conditioned upon and also involve a number of known and unknown risks, uncertainties and other factors that could cause actual results, performance or events to differ materially from those anticipated by these forward-looking statements. Such risks, uncertainties and other factors may be beyond the Company’s control and may pose a risk to the Company’s operating and financial condition. Undue reliance should not be placed on the forward-looking statements in this press release, which are based on information available to us on, and which speak only as of, the date hereof. The Company undertakes no obligation to update forward-looking statements to reflect events or circumstances after the date they were made, unless required by applicable law.
Exhibit 99.3
June 17, 2020
Seagate Announces Pricing of Previously Announced Exchange Offers and Acceptance of Tendered Notes
FREMONT, CA - June 17, 2020 - Seagate HDD Cayman (the “Company”), a subsidiary of Seagate Technology plc (NASDAQ: STX), today announced the pricing of its previously announced exchange offers (each, an “Exchange Offer” and together, the “Exchange Offers”) to certain eligible holders of the Company’s outstanding debt securities listed in the table below (together, the “Existing Notes” and each a “series” of Existing Notes) to exchange Existing Notes for up to $500,000,000 (the “New Issue Cap”) in aggregate principal amount of the Company’s new senior notes due 2029 (the “New Notes”). The complete terms and conditions of the New Notes are set forth in a confidential offering memorandum, dated as of June 3, 2020 (the “Offering Memorandum”), and the related letter of transmittal.
The Company announced that it will pay interest on the New Notes at a rate per annum equal to 4.091%, as calculated in accordance with the Offering Memorandum.
Existing Notes validly tendered and accepted by the Company at or prior to 5:00 p.m., New York City time, on June 16, 2020 (the “Early Exchange Date”) are expected to settle on June 18, 2020 (the “Early Settlement Date”), unless extended by the Company.
The table below indicates, among other things, the Total Exchange Consideration (as defined in the Offering Memorandum) for each $1,000 principal amount of Existing Notes tendered and accepted as of the Early Exchange Date pursuant to the Exchange Offers determined in accordance with the Offering Memorandum:
| CUSIP |
Existing Notes |
Reference U.S. |
Fixed Spread (bps) |
Yield Used to Price Existing Notes(1) |
Early Exchange Premium(2) |
Total Exchange Consideration(2)(3) | ||||||
| 81180WAL5 |
4.750% Senior Notes due 2025 | 0.250% due May 31, 2025 | 215 | 2.488% | $50 | $1,096.45 | ||||||
| 81180WAR2 |
4.875% Senior Notes due 2027 |
0.625% due May 15, 2030 | 250 | 3.241% | $50 | $1,097.69 |
| 1. | The yield of the 0.250% U.S. Treasury due May 31, 2025 as of June 17, 2020 (the “Pricing Date”) was 0.338% and the yield of the 0.625% U.S. Treasury due May 15, 2030 as of the Pricing Date was 0.741%. |
| 2. | Per $1,000 principal amount of Existing Notes. |
| 3. | Does not reflect any accrued and unpaid interest or amounts due in lieu of any fractional amounts of New Notes. The Company will pay (i) accrued and unpaid interest due on the Existing Notes, up to, but not including, the Early Settlement Date and (ii) the amounts due in lieu of any fractional amounts of New Notes exchanged for any Existing Notes accepted for exchange on the Early Settlement Date, in each case, in cash on the Early Settlement Date. |
In accordance with the acceptance priority levels and proration procedures described in the Offering Memorandum, the Company will accept $456,166,000 in aggregate principal amount of the Existing Notes that were tendered for exchange at or prior to the Early Exchange Date. The Company expects to deliver an aggregate principal amount of $500,000,000 of New Notes and will pay cash for the (i) accrued and unpaid interest due on the Existing Notes, up to, but not including, the Early Settlement Date accepted for exchange on the Early Settlement Date and (ii) the amounts due in lieu of any fractional amounts of New Notes exchanged for any Existing Notes accepted for exchange on the Early Settlement Date.
The table below indicates, among other things, the principal amount of each series of Existing Notes validly tendered as of the Early Exchange Date, the principal amount of Existing Notes to be accepted for exchange as of the Early Exchange Date and the percentage of the principal amount of Existing Notes to be accepted for exchange pursuant to the Exchange Offers:
| CUSIP |
Existing Notes |
Principal Amount Outstanding |
Principal Amount Tendered by the Early Exchange Date |
Principal Amount to be Accepted for Exchange |
Percentage (%) of Principal Amount to be Accepted for Exchange(1) | |||||
| 81180WAL5 |
4.750% Senior Notes due 2025 |
$749,996,000 | $270,778,000 | $270,778,000 | 100% | |||||
| 81180WAR2 |
4.875% Senior Notes due 2027 |
$690,426,000 | $373,370,000 | $185,388,000 | 49.7% |
| 1. | Represents the proration factor since Existing Notes were validly tendered such that the maximum amount of New Notes to be issued in exchange for such tendered Existing Notes would have exceeded the New Issue Cap. |
The Exchange Offers are scheduled to expire at 11:59 p.m., New York City time, on June 30, 2020, unless extended by the Company. Since Existing Notes of each series have been validly tendered such that the maximum aggregate principal amount of New Notes to be issued in exchange for all such tendered Existing Notes would exceed the New Issue Cap, no additional Existing Notes of either series will be accepted for exchange after the Early Exchange Date.
Tenders of Existing Notes in the Exchange Offers may no longer be withdrawn, except in certain limited circumstances where additional withdrawal rights are required by law. The Company’s obligation to accept for exchange the Existing Notes validly tendered in each Exchange Offer is subject to the satisfaction or waiver of certain conditions as described in the Offering Memorandum and the Company reserves the right to terminate any Exchange Offer for any reason or for no reason.
This press release does not constitute an offer or a solicitation by the Company to participate in the Exchange Offers and does not constitute an offer to sell or a solicitation of an offer to buy the New Notes, nor shall there be any sale of the New Notes in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The New Notes have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws. The New Notes may not be offered or sold in the United States or to any “U.S. person” as defined in Rule 902 under the Securities Act except pursuant to an applicable exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Company will enter into a registration rights agreement with respect to the New Notes.
About Seagate
Seagate crafts the datasphere, helping to maximize humanity’s potential by innovating world-class, precision-engineered data management solutions with a focus on sustainable partnerships.
© 2020 Seagate Technology LLC. All rights reserved. Seagate, Seagate Technology and the Spiral logo are registered trademarks of Seagate Technology LLC in the United States and/or other countries.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements provide current expectations of future events based on certain assumptions and include any statement that does not directly relate to any historical fact. Forward-looking statements include, among other things, statements about the New Notes and the Exchange Offers. These forward-looking statements are conditioned upon and also involve a number of known and unknown risks, uncertainties and other factors that could cause actual results, performance or events to differ materially from those anticipated by these forward-looking statements. Such risks, uncertainties and other factors may be beyond the Company’s control and may pose a risk to the Company’s operating and financial condition. Undue reliance should not be placed on the forward-looking statements in this press release, which are based on information available to us on, and which speak only as of, the date hereof. The Company undertakes no obligation to update forward-looking statements to reflect events or circumstances after the date they were made, unless required by applicable law.