VST 8-K
Vistra Corp. (VST)
8-K
2026-09-24
For: 2026-09-24
View Original
Added on
September 24, 2026
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 24, 2026
(Exact name of registrant as specified in its charter)
|
|
|
|
|
(State or other jurisdiction of incorporation or organization)
|
(Commission File Number)
|
(I.R.S. Employer Identification No.)
|
|
|
|
|
|
(Address of principal executive offices)
|
(Zip Code)
|
(214 ) 812-4600
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.l4a-12)
|
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240. 14d-2(b))
|
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Securities registered pursuant to Section 12(b) of the Act:
|
Title of Each Class
|
Trading Symbol(s)
|
Name of Each Exchange on Which Registered
|
||
|
|
NYSE Texas
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 a Material Definitive Agreement.
|
On September 24, 2026, Vistra Operations Company LLC (“Vistra Operations”), an indirect, wholly owned subsidiary of Vistra Corp. (“Vistra”), completed
its underwritten public offering of $850,000,000 aggregate principal amount of its 7.000% Series A Junior Subordinated Notes due 2057 (the “Series A Notes”) and $650,000,000 aggregate principal amount of its 7.250% Series B Junior Subordinated
Notes due 2057 (the “Series B Notes” and, together with the Series A Notes, the “Notes”), in each case irrevocably and unconditionally guaranteed by Vistra (the “Guarantee” and, together with the Notes, the “Securities”). The Securities were issued
pursuant to the Indenture, dated as of September 24, 2026 (the “Base Indenture”), among Vistra Operations, as issuer, Vistra, as guarantor, and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by the First
Supplemental Indenture, dated as of September 24, 2026 (together with the Base Indenture, the “Indenture”), among Vistra Operations, Vistra and the Trustee. The Indenture and the terms of the Securities are further described under “Description of
the Notes” in the prospectus supplement of Vistra Operations and Vistra dated September 10, 2026, together with the related prospectus dated September 8, 2026, as filed with the Securities and Exchange Commission under Rule 424(b)(2) of the
Securities Act of 1933 on September 14, 2026, which descriptions are incorporated herein by reference. The sale of the Securities was registered under Vistra’s and Vistra Operations’ registration statement on Form S-3 filed on September 8, 2026
(File Nos. 333-298811 and 333-298811-01) (the “Registration Statement”).
Copies of the Base Indenture, the First Supplemental Indenture and the forms of the Notes of each series have been filed as Exhibits 4.1, 4.2, 4.3 and
4.4, respectively, to this report and are incorporated herein by reference and into the Registration Statement. The foregoing description of the Indenture and the Securities does not purport to be complete and is qualified in its entirety by
reference to such exhibits.
| Item 8.01. |
Other Events.
|
The Securities were sold pursuant to an Underwriting Agreement, dated September 10, 2026 (the “Underwriting Agreement”), among Vistra Operations,
Vistra and Barclays Capital Inc., BofA Securities, Inc., Mizuho Securities USA LLC, MUFG Securities Americas Inc. and Truist Securities, Inc., as representatives of the several underwriters named in Schedule A to the Underwriting Agreement. A copy
of the Underwriting Agreement has been filed as Exhibit 1.1 to this report and is incorporated herein by reference and into the Registration Statement. Additionally, the legal opinion of Sidley Austin LLP issued in connection with the offering of
the Securities is attached hereto as Exhibit 5.1 and is incorporated herein by reference and into the Registration Statement.
| Item 9.01. |
Financial Statements and Exhibits.
|
(d) Exhibits.
|
Exhibit
No.
|
Description
|
|
|
Underwriting Agreement, dated September 10, 2026, by and among Vistra Operations Company LLC, Vistra Corp. and Barclays Capital Inc., BofA Securities, Inc., Mizuho Securities USA LLC, MUFG
Securities Americas Inc. and Truist Securities, Inc., as representatives of the several underwriters named therein.
|
||
|
Indenture, dated as of September 24, 2026, by and among Vistra Operations Company LLC, as Issuer, Vistra Corp., as Guarantor, and Wilmington Trust, National Association, as Trustee.
|
||
|
First Supplemental Indenture, dated as of September 24, 2026, by and among Vistra Operations Company LLC, as Issuer, Vistra Corp., as Guarantor, and Wilmington Trust, National Association, as
Trustee.
|
||
|
Form of 7.000% Series A Junior Subordinated Note due 2057 (included in Exhibit 4.2 hereto).
|
||
|
Form of 7.250% Series B Junior Subordinated Note due 2057 (included in Exhibit 4.2 hereto).
|
||
|
Opinion of Sidley Austin LLP.
|
||
|
Consent of Sidley Austin LLP (included in Exhibit 5.1 hereto).
|
||
|
104
|
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
|
Vistra Corp.
|
||
|
Dated: September 24, 2026
|
/s/ William M. Quinn | |
|
Name:
|
William M. Quinn
|
|
|
Title:
|
Senior Vice President and Treasurer
|
|
Exhibit 1.1
VISTRA OPERATIONS COMPANY LLC
(a Delaware limited liability company)
$850,000,000 7.000% Series A Junior Subordinated Notes due 2057
$650,000,000 7.250% Series B Junior Subordinated Notes due 2057
UNDERWRITING AGREEMENT
Dated: September 10, 2026
VISTRA OPERATIONS COMPANY LLC
(a Delaware limited liability company)
$850,000,000 7.000% Series A Junior Subordinated Notes due 2057
$650,000,000 7.250% Series B Junior Subordinated Notes due 2057
UNDERWRITING AGREEMENT
September 10, 2026
Barclays Capital Inc.
BofA Securities, Inc.
Mizuho Securities USA LLC
MUFG Securities Americas Inc.
Truist Securities, Inc.
as Representative(s) of the several Underwriters
| c/o |
Barclays Capital Inc.
|
745 Seventh Avenue
New York, New York 10019
| c/o |
BofA Securities, Inc.
|
One Bryant Park
New York, New York 10036
| c/o |
Mizuho Securities USA LLC
|
1271 Avenue of the Americas
New York, New York 10020
| c/o |
MUFG Securities Americas Inc.
|
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
| c/o |
Truist Securities, Inc.
|
50 Hudson Yards, 70th Floor
New York, New York 10001
Ladies and Gentlemen:
Vistra Operations Company LLC, a Delaware limited liability company (the “Company”)
and indirect, wholly owned subsidiary of Vistra Corp., a Delaware corporation (the “Parent”), and Parent confirm their agreement with BofA Securities, Inc. (“BofA”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof),
for whom Barclays Capital Inc., BofA, Mizuho Securities USA LLC, MUFG Securities Americas Inc. and Truist Securities, Inc. are acting as representatives (in such capacity, the “Representatives”), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in such Schedule A of the Company’s 7.000% Series A Junior Subordinated Notes due 2057 (the “Series A Notes”) and the Company’s 7.250% Series B Junior Subordinated Notes due 2057 (the “Series B Notes” and, together with the
Series A Notes, the “Notes”).
The Notes will be issued pursuant to an indenture, dated as of September 24, 2026 (the “Base
Indenture”), between the Company, Parent and Wilmington Trust, National Association, as trustee (the “Trustee”). Certain terms of the Notes will be established pursuant
to a supplemental indenture (the “Supplemental Indenture”) to the Base Indenture (together with the Base Indenture, the “Indenture”).
The Notes will be irrevocably and unconditionally guaranteed by the Parent (the “Guarantee” and, together with the Notes, the “Securities”).
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”), pursuant to a Letter of Representations, to be dated on or
before the Closing Time (as defined in Section 2 below) (the “DTC Agreement”), among the Company, the Trustee and DTC.
The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”)
an “automatic shelf registration statement,” as defined under Rule 405 (“Rule 405”) under the Securities Act of 1933, as amended (the “1933 Act”), on Form S-3 (File No. 333-298811)
covering the public offering and sale of certain securities of the Company, including the Notes, under the 1933 Act and the rules and regulations promulgated thereunder (the “1933 Act Regulations”),
which automatic shelf registration statement became effective under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”). Such registration statement, as of any time, means such
registration statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time
pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B of the 1933 Act Regulations (“Rule 430B”),
is referred to herein as the “Registration Statement”; provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by
any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered the “new effective date” of the Registration Statement with respect to the Securities within the meaning of Rule
430B(f)(2), including the exhibits and schedules thereto as of such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise
deemed to be a part thereof as of such time pursuant to Rule 430B. Each preliminary prospectus supplement and the base prospectus used in connection with the offering of the Notes, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act immediately prior to the Applicable Time (as defined below), are collectively referred to herein as a “preliminary
prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus supplement relating to the Notes in accordance with the provisions of Rule 424(b) of the 1933 Act
Regulations (“Rule 424(b)”). The final prospectus supplement and the base prospectus, in the form first furnished to the Underwriters for use in connection with the offering and sale of the Notes, including the documents incorporated or deemed
to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act immediately prior to the Applicable Time, are collectively referred to herein as the “Prospectus.”
For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system (or any successor system) (“EDGAR”).
As used in this Agreement:
“Applicable Time” means 6:25 P.M., New York City time, on September
10, 2026 or such other time as agreed by the Company and the Representatives.
2
“General Disclosure Package” means each Issuer General Use Free
Writing Prospectus issued at or prior to the Applicable Time and the most recent preliminary prospectus (including any documents incorporated therein by reference) that is distributed to prospective investors prior to the Applicable Time, all
considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including, without limitation, any “free writing prospectus” (as defined in Rule 405) relating to the Notes
that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing
with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or of the offering thereof that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if
not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to investors, as evidenced by its being specified in Schedule B hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing Prospectus, as evidenced by its being specified in Schedule C hereto.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or
other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated or deemed to be incorporated by
reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the Applicable Time; and all references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and
regulations promulgated thereunder (the “1934 Act Regulations”) incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, at or after the Applicable Time.
This Agreement, the Indenture and the Securities are referred to herein, collectively, as the “Operative Documents.”
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. Each of the Company and the Parent, jointly and severally, represents and warrants to each Underwriter at the date hereof,
the Applicable Time and the Closing Time (as defined below), and agrees with each Underwriter, as follows:
3
(i) Compliance of the Registration Statement, the Prospectus
and Incorporated Documents. The Company and the Parent meet the requirements for use of Form S-3 under the 1933 Act. The Registration Statement is an automatic shelf registration statement under Rule 405 and the Notes have
been and remain eligible for registration by the Company and the Parent on such automatic shelf registration statement. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations (“Rule 401(g)(2)”) has been received by the Company or the Parent, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or, to either of the Company’s or the
Parent’s knowledge, contemplated, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated thereunder (the “Trust Indenture Act”).
Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness, each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), the Applicable Time and the Closing Time complied and will comply in all material respects with the applicable requirements of the 1933 Act, the 1933 Act Regulations and
the Trust Indenture Act; provided that the Company makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility (T-1) of the Trustee under the Trust Indenture Act
and (ii) any statements or omissions made in reliance upon and conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in the Registration
Statement or the Prospectus or any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the Underwriter Information (as defined below) described as such in Section
1(a)(ii). Each preliminary prospectus and the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, the Applicable Time and the Closing Time complied and will comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act, and each preliminary prospectus and the Prospectus are identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the applicable requirements of the 1934 Act and the 1934 Act
Regulations.
(ii) Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof or at the Closing Time, contained, contains or will contain
an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time, neither (A) the General
Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto (including any
prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) or at the Closing Time, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such incorporated documents were filed with the Commission, as the case may be, when read together with
the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not, does not and will not include an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
4
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration
Statement or any amendment thereto or the General Disclosure Package or the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company and the Parent by any
Underwriter through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Notes
and (ii) under the heading “Underwriting,” the eighth and tenth paragraphs related to covering and stabilizing transactions in the preliminary prospectus (collectively, the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement, any preliminary prospectus
or the Prospectus, including any document incorporated by reference therein, that has not been superseded or modified. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the General Disclosure
Package or the Prospectus, the Company has promptly notified or will promptly notify the Representative(s) and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Parent and the Company by any Underwriter through the Representative(s) specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representative(s) consists of the
Underwriter Information.
Any offer that is a written communication relating to the Securities made prior to the initial filing of the Registration
Statement by the Company or the Parent or any person acting on their behalf (within the meaning, for this paragraph only, of paragraph (c) of Rule 163 of the 1933 Act Regulations (“Rule 163(c)”))
has been filed with the Commission in accordance with the exemption provided by Rule 163(c) and otherwise complied with the requirements of Rule 163, including, without limitation, the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the 1933 Act provided by Rule 163(c).
(iv) Distribution of Offering Material By the Company. Neither the Company nor the Parent has distributed and will
not distribute, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the Registration Statement, the
General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representative(s) and listed on Schedule B hereto or any electronic road show or other written communications reviewed and
consented to by the Representative(s) and listed on Schedule C hereto (each, a “Company Additional Written Communication”). Each such Company Additional Written Communication, when
taken together with the General Disclosure Package, did not, and at the Closing Time will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Company Additional Written Communication based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative(s) specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representative(s) consists of the
Underwriter Information.
5
(v) No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar
rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
(vi) Well-Known Seasoned Issuer. (A) At the original effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company, the Parent or any person
acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Notes in reliance on the exemption of Rule 163, (D) at the date of this Agreement and (E) at the Applicable Time, the Company
was and is a “well-known seasoned issuer,” as defined in Rule 405.
(vii) Not Ineligible Issuer. (A) At the time of filing the Registration Statement and any post-effective amendment thereto, (B) at the earliest time thereafter that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Notes, (C) at the date of this Agreement and (D)
at the Applicable Time, neither the Company nor the Parent was or is an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that either the
Company or the Parent be considered an ineligible issuer.
(viii) Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the
Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board.
(ix) Financial Statements; Non-GAAP Financial Measures. The consolidated historical financial statements and schedules of the Parent and its consolidated subsidiaries, included or
incorporated by reference in the General Disclosure Package and the Prospectus present fairly the financial condition, results of operations and cash flows of the Parent, as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of Regulation S-X (as defined below) and have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved (except as otherwise noted therein). All disclosures contained or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus, if
any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the 1934 Act and Item 10 of Regulation S-K under the 1933 Act, to the extent applicable. The
interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus presents the information called for in all material respects and
has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
6
(x) Good Standing. Each of the Company and the Parent has been duly incorporated or formed, as applicable, and, except as would not, individually or in the aggregate, have a
Material Adverse Effect (as defined below) (i) is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction in which it is incorporated, chartered, organized or formed with full
corporate or limited liability company, as applicable, power and authority necessary to own or lease, as the case may be, and to operate its properties and conduct its business as described in the General Disclosure Package and the
Prospectus, (ii) is duly qualified to do business as a foreign corporation or limited liability company, as applicable, and (iii) is in good standing under the laws of each jurisdiction that requires such qualification.
(xi) Significant Subsidiaries. The subsidiaries listed on Annex A attached hereto are the only “significant subsidiaries” of the Parent (as defined in Rule 1-02 of Regulation S-X under the
Securities Act (“Regulation S-X”)) as of June 30, 2026.
(xii) Capitalization. The Parent has the authorized capitalization set forth in the General Disclosure Package and the Prospectus. All the outstanding shares of capital stock or ownership
interests of the Company and the Parent have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the General Disclosure Package and the Prospectus, all outstanding shares of
capital stock or ownership interests of the material subsidiaries are owned by the Parent either directly or through wholly owned subsidiaries free and clear of any security interest, claim, lien or encumbrance, other than any encumbrances
created by Permitted Liens (as defined in the Indenture).
(xiii) Authorization of Agreement, the Indenture and the Notes. This Agreement has been duly authorized, executed and delivered by each of the Company and the Parent; the Indenture has been
duly authorized by the Company and the Parent and, when duly executed and delivered by the Company and the Parent at the Closing Time and, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a legal,
valid and binding instrument enforceable against the Company and the Parent in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and to general principles of equity); and the Notes have been duly authorized, and, when executed, authenticated, issued and delivered in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity) and enforceable against the
Company in accordance with their terms.
(xiv) Authorization of the Guarantee. The Guarantee has been duly authorized, and, when the Securities have been executed and delivered by the Company in accordance with the provisions of
the Indenture, will constitute the legal, valid and binding obligations of the Parent entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity) and enforceable against the Parent in accordance with its terms.
(xv) Description of the Securities and the Indenture. The Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Registration Statement,
the General Disclosure Package and the Prospectus.
7
(xvi) Accuracy of Statements. The statements in the preliminary prospectus supplement and the final prospectus
supplement under the heading “Material U.S. Federal Income Tax Consequences” fairly summarize the matters therein described.
(xvii) Absence of Violations, Defaults and Conflicts. Neither the Parent nor any of its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or comparable
constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which
its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Parent or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Parent or such subsidiary, or to any of their properties, as applicable, except, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate, have a Material Adverse Effect. None of the execution and delivery of this Agreement, the Indenture, the issuance and sale of the Notes and the Guarantee, the performance by the Parent or the Company of their respective obligations under this
Agreement, the Indenture or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof conflicted or will conflict with, as applicable, resulted or will result, as
applicable, in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Parent or any of the Parent’s subsidiaries, pursuant to, (a) the charter or by-laws or comparable constituting
documents of the Parent or any of the Parent’s subsidiaries; (b) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which
the Parent or any of the Parent’s subsidiaries, is a party or bound or to which its or their property is subject; or (c) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Parent or any of the Parent’s subsidiaries, or any of its or their properties, which conflict, breach, violation or imposition would, in the case of clauses (b)
and (c) above, either individually or in the aggregate with all other conflicts, breaches, violations and impositions referred to in this paragraph (if any), have (x) a Material Adverse Effect (as defined below) or (y) a material adverse
effect upon the transactions contemplated herein.
(xviii) Absence of Labor Dispute. No labor problem or dispute with the employees of the Parent or any of its subsidiaries exists or, to the knowledge of the Parent, is threatened or imminent,
and the Parent is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect and except as set
forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(xix) Absence of Proceedings. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent or any of its subsidiaries
or its or their property is pending or, to the best knowledge of the Parent, threatened that (i) could reasonably be expected to have a material adverse effect on the performance by the Parent or the Company of this Agreement, the Indenture
or the consummation of any of the transactions contemplated hereby or thereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, business or properties of the Parent
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (clauses (i) and (ii), a “Material Adverse Effect”), except as set
forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
8
(xx) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Authority is necessary
or required for the performance by either the Company or the Parent of its respective obligations under the Operative Documents, in connection with the offering, issuance or sale of the Securities or the consummation of the transactions
contemplated in the Operative Documents, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of Financial
Industry Regulatory Authority, Inc. (“FINRA”).
(xxi) Possession of Licenses and Permits. The Parent and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable
authorities necessary to conduct their respective businesses, and neither the Parent nor any of its subsidiaries has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto).
(xxii) Title to Property. (i) Each of the Parent and its subsidiaries has good and marketable title to all the properties (real and personal) described in the General Disclosure Package and
the Prospectus as being owned by any of them, in each case, free and clear of any liens, equities, claims and other defects (except as may exist under applicable law and as may be imposed by the Parent’s credit facilities and its
subsidiaries’ credit facilities described in the General Disclosure Package and the Prospectus, Permitted Liens or as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries); and (ii) all the property described in the General Disclosure Package and the Prospectus as being held under lease by the Parent or its subsidiaries is held thereby under valid,
subsisting and enforceable leases, except, in the case of clause (i) or (ii), as would not, individually or in the aggregate, have a Material Adverse Effect.
(xxiii) Payment of Taxes. There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale of the Securities. The Parent and each of its subsidiaries has filed all applicable tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure
so to file would not have a Material Adverse Effect and except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)) and has paid all taxes required to be paid
by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect and except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(xxiv) Insurance. The Parent and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Parent or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full
force and effect; the Parent and its subsidiaries are in compliance in all material respects with the terms of such policies and instruments; except for losses reflected in the Parent’s financial statements and set forth in public
disclosures, there are no claims by the Parent or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability; neither the Parent nor any of its subsidiaries have been refused any
insurance coverage sought or applied for; and neither the Parent nor any of its subsidiaries have any reason to believe that it or they will not be able to renew its or their existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect except as set forth in or contemplated in the General Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto).
9
(xxv) Environmental Laws. The Parent and its subsidiaries (i) are in compliance with any and all applicable laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received written notice of any actual or potential liability under any Environmental Law, except with respect to
(i) through (iii) above where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). Except as would not, individually or in the aggregate, have a Material Adverse Effect, or
except as set forth in the General Disclosure Package and the Prospectus, neither the Parent nor any of its subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(xxvi) Periodic Review of Costs of Environmental Compliance. In the ordinary course of its business, the Parent
periodically reviews the effect of Environmental Laws on the business, operations and properties of the Parent and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any environmental permit, license or approval, any related constraints on operating activities and any
potential environmental liabilities to third parties); on the basis of such review, the Parent has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect, except
as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(xxvii) Accounting Controls and Disclosure Controls. The Parent has established and maintains a system of internal control over financial reporting (to the extent required by and as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act applicable to the Parent and has been designed by the Parent’s principal executive officer and principal financial officer, or under
their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles as applied in
the United States; the Parent’s internal control over financial reporting is effective; and the Parent is not aware of any material weaknesses in its internal control over financial reporting. The Parent maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to
the Parent and its subsidiaries is made known to the Parent’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
10
(xxviii) Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Parent or any of the Parent’s directors or officers, in their respective capacities as such,
to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the applicable rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(xxix) ERISA Compliance. Except as would not have a Material Adverse Effect or as otherwise set forth in the General
Disclosure Package and the Prospectus, (i) the minimum funding standard under Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA) that has been established or maintained by the Parent and/or one or more of its subsidiaries, and
the trust forming part of each such plan which is intended to be qualified under Section 401 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder has received a favorable determination letter from the
IRS with respect to its qualification; (ii) each of the Parent and its subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA; (iii) neither the Parent nor any of its subsidiaries maintains or is required to make
material contributions to a “welfare plan” (as defined in Section 3(1) of ERISA) that provides retiree or other post-employment welfare benefits or insurance coverage (other than “continuation coverage” (as defined in Section 602 of ERISA or
similar state law providing for continuation health coverage for former employees)); (iv) each pension plan and welfare plan established or maintained by the Parent and/or one or more of its subsidiaries is in compliance in all material
respects with the currently applicable provisions of ERISA; and (v) neither the Parent nor any of its subsidiaries has incurred or could reasonably be expected to incur any withdrawal liability under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability under Title IV of ERISA other than Pension Benefit Guaranty Corporation premiums incurred in the normal course.
(xxx) Investment Company Act. Neither the Company nor the Parent is or, after giving effect to this offering and the application of the proceeds thereof as described in the General Disclosure
Package and the Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
(xxxi) Absence of Manipulation. Neither the Company nor the Parent (or any other person acting on its or their behalf) has taken, directly or indirectly, any action designed to or that has
constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company or the Parent to facilitate the sale or resale of the
Securities.
(xxxii) Foreign Corrupt Practices Act. Neither the Parent nor any of its subsidiaries nor, to the knowledge of the Parent, any director, officer, agent, employee, Affiliate or other person
acting on behalf of the Parent or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a violation or a sanction for violation by any such person or entity of the Foreign Corrupt Practices
Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar applicable law of any other relevant jurisdiction, or the applicable rules or regulations thereunder; and the Parent and its subsidiaries have instituted and
maintain policies and procedures to ensure compliance therewith. No part of the proceeds of this offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as
may be amended, or similar applicable law of any other relevant jurisdiction, or the applicable rules or regulations thereunder
11
(xxxiii) Money Laundering Laws. The operations of the Parent and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements and applicable money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Parent, threatened.
(xxxiv) OFAC. Neither the Parent nor any of its subsidiaries nor, to the knowledge of the Parent, any director, officer, agent, employee or Affiliate of the Parent or any of its subsidiaries
(i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any
administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security
Council, the European Union, a member state of the European Union, the United Kingdom (including sanctions administered or enforced by His Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”),
(ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea Region of
Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of Kherson and Zaporizhzhia, Cuba, Iran, North Korea and Russia, collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any
individual or entity (including any individual or entity participating in this offering, whether as underwriter, advisor, investor or otherwise). Neither the Parent nor any of its subsidiaries has engaged in any dealings or transactions with
or for the benefit of a then-Sanctioned Person, or with or in a then-Sanctioned Country, since April 24, 2019, nor does the Parent or any of its subsidiaries have any plans to engage in dealings or transactions with or for the benefit of a
Sanctioned Person, or with or in a Sanctioned Country.
(xxxv) Lending and Other Relationships. Except as disclosed in the General Disclosure Package and the Prospectus,
neither the Company nor the Parent (i) has any material lending or other relationship with any Underwriter or Affiliate of any Underwriter and (ii) intends to use any of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any Affiliate of any Underwriter.
(xxxvi) Cybersecurity. (x) There has been no security breach or attack or other compromise of or relating to any of the Parent’s and its subsidiaries’ information technology and computer
systems, networks, hardware, software, data (including the data of their respective tenants, employees, vendors and any third party data maintained by or on behalf of them), equipment or technology (“IT Systems and Data”), (y) the Parent and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach, attack or
compromise to their IT Systems and Data and (z) the Parent and its subsidiaries have complied, and are presently in compliance, in all material respects, with all applicable laws, statutes or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority and all industry guidelines, standards, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT
Systems and Data from unauthorized use, access, misappropriation or modification, except in each case of clauses (x), (y) and (z) that would not reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have
implemented and maintain commercially reasonable controls, policies, procedures, and safeguards designed to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and Data.
12
Officer’s Certificates. Any certificate
signed by any officer of the Company or the Parent and delivered to the Representatives or counsel for the Underwriters as required by this Agreement or the Indenture in connection with the offering contemplated hereby shall be deemed a
representation and warranty by the Company or the Parent, as applicable, as to matters covered thereby, to each Underwriter.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The Notes. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of 99.000% of the principal amount of the Series A Notes and 99.000% of the principal amount of
the Series B Notes, plus accrued interest, if any, from September 24, 2026 to the Closing Time (as defined below) hereunder, the principal amount of Notes set forth opposite the name of such Underwriter in Schedule A.
(b) The Closing Time. Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Davis Polk
& Wardwell LLP, or at such other place as shall be agreed upon by the Representative(s) and the Company, at 9:00 A.M. (New York City time) on September 24, 2026 (unless postponed in accordance with the provisions of Section 10) or such
other time not later than ten business days after such date as shall be agreed upon by the Representative(s) and the Company (such time and date of payment and delivery being herein called “Closing
Time”).
(c) Public Offering of the Notes. The Representative(s) hereby advises the Company that the Underwriters intend to offer for sale to the public, as described in the General
Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Applicable Time as the Representative(s), in their sole judgment, have determined is advisable and practicable.
(d) Payment for the Notes. Payment for the Notes shall be made to the Company at the Closing Time by wire transfer of immediately available funds to a bank account designated
by the Company.
It is understood that each Underwriter has authorized the Representative(s), for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Notes which it has agreed to purchase. The Representative(s) may (but shall not be obligated to) make payment of the purchase price for the Notes to be purchased by any Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the Representative(s) for the accounts of the several Underwriters certificates for the
Notes at the Closing Time, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The certificates for the Notes shall be in such denominations and registered in such
names as the Representative(s) shall have requested at least two full business days prior to the Closing Time and shall be made available for inspection on the business day preceding the Closing Time at a location in New York City, as the
Representative(s) may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
13
SECTION 3. Covenants of the Company and the Parent. Each of the Company and the Parent covenants and agrees with each Underwriter as follows:
(a) Compliance with Commission Requests. The Company, subject to Section 3(b) hereof, will comply with the requirements of Rule 430B, and will notify the Representative(s)
immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or any new registration statement relating to the Notes shall become effective or any amendment or supplement to the General
Disclosure Package or the Prospectus shall have been used or filed, as the case may be, including any document incorporated by reference therein, in each case only as permitted by this Section 3, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus, including any document incorporated by reference therein,
or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) or of the issuance of any order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto,
or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the
1933 Act concerning the Registration Statement and (v) if either the Company or the Parent becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes. The Company and the Parent will
effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company and the Parent will make every reasonable effort to prevent
the issuance of any stop, prevention or suspension order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Notes within
the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Continued Compliance with Securities Laws. Each of the Company and the Parent will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to
the Notes is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of
the Notes any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company and the Parent, to (i) amend the Registration Statement in order that the
Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General
Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the
case may be, including, without limitation, any document incorporated therein by reference, in order to comply with the applicable requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company
and the Parent will promptly (A) give the Representative(s) written notice of such event or condition, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement,
the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative(s) with copies of any such amendment or supplement and (C) file
with the Commission any such amendment or supplement and use their respective best efforts to have any amendment to the Registration Statement declared effective by the Commission as soon as possible if the Company and the Parent are no
longer eligible to file an automatic shelf registration statement, provided that the Company and the Parent shall not file or use any such amendment or supplement to which the Representative(s) or counsel for the Underwriters shall object.
14
(c) Filing or Use of Amendments or Supplements. Each of the Company and the Parent has given the Representative(s) written notice of any filings made pursuant to the 1934 Act
or 1934 Act Regulations within 48 hours prior to the Applicable Time and will give the Representative(s) written notice of its intention to file or use any amendment to the Registration Statement or any amendment or supplement to the General
Disclosure Package or the Prospectus, whether pursuant to the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or otherwise, from the Applicable Time to the later of (i) the time when a prospectus relating to the
Notes is no longer required by the 1933 Act (without giving effect to Rule 172) to be delivered in connection with sales of the Notes and (ii) the Closing Time, and will furnish the Representative(s) with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such amendment or supplement to which the Representative(s) or counsel for the Underwriters shall reasonably object.
(d) Delivery of Registration Statements. The Company has furnished or will deliver to the Representative(s) and counsel for the Underwriters, without charge, signed copies of
the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies
of all consents and certificates of experts, and will also deliver to the Representative(s), without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the
Underwriters. The signed copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S‑T.
(e) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Notes is (or, but
for the exception afforded by Rule 172, would be) required by the 1933 Act to be delivered in connection with sales of the Notes, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S‑T.
15
(f) Blue Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify or register the Notes for offering and sale
under (or obtain exemptions from the application of) the applicable securities laws of such states and non-U.S. jurisdictions as the Representative(s) may designate and to maintain such qualifications in effect so long as required to complete
the distribution of the Notes; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will advise the Representative(s) promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) Earnings Statements. The Parent will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon
as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act (which may be satisfied by a filing on the Commission’s EDGAR
system).
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Notes in the manner specified in the Registration Statement, the General
Disclosure Package and the Prospectus under “Use of Proceeds.”
(i) Restriction on Sale of Notes. During the period commencing on the date hereof and ending at the Closing Time, neither the Company nor the Parent will, without the prior
written consent of the Representative(s) (which consent may be withheld at the Representative(s)’ discretion), (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of, or lend or otherwise transfer or dispose of, the Notes or any securities that are substantially similar to the Notes, whether owned as of the date hereof or hereafter
acquired or with respect to which such person has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of the Notes or such other securities, whether any such transaction, swap or other agreement described
in clause (i) or (ii) above is to be settled by delivery of any Notes or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Notes to be sold hereunder.
(j) Reporting Requirements. Each of the Company and the Parent, during the period when a prospectus relating to the Notes is (or, but for the exception afforded by Rule 172,
would be) required by the 1933 Act to be delivered in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by, and each such document
will meet the applicable requirements of, the 1934 Act and 1934 Act Regulations.
(k) Final Term Sheet. The Company will prepare, or cause to be prepared, a final term sheet (a “Final Term Sheet”)
reflecting only a description of the final terms of the Notes and the offering, attached as Schedule D hereto, and acknowledges that the Final Term Sheet is an Issuer Free Writing Prospectus and will comply with its related obligations set
forth in Section 3(l) hereof. The Company will furnish to each Underwriter, without charge, copies of the Final Term Sheet promptly upon its completion.
16
(l) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative(s), it will not make any offer relating to the
Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company
under Rule 433; provided that the Representative(s) will be deemed to have consented to the Issuer General Use Free Writing Prospectuses listed on Schedule B hereto and any “road show that is a written communication” within the meaning of
Rule 433(d)(8)(i) that has been reviewed by the Representative(s) listed on Schedule C. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the
Representative(s) as an Issuer Free Writing Prospectus and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and
record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative(s) in writing and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(m) Renewal Deadline. If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any Notes remain unsold by the Underwriters, the Company and the Parent will, prior to the Renewal Deadline, (i) promptly notify the Representative(s) in writing and (ii) promptly file, if it is
eligible to do so, a new automatic shelf registration statement relating to the Notes, in form and substance satisfactory to the Underwriters. If, at the Renewal Deadline, the Company and the Parent are not eligible to file an automatic
shelf registration statement, the Company and the Parent will, prior to the Renewal Deadline, (i) promptly notify the Representative(s) in writing, (ii) promptly file a new shelf registration statement or post-effective amendment on the
proper form relating to such Notes, in form and substance satisfactory to the Underwriters, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective within 60 days after the Renewal
Deadline and (iv) promptly notify the Representative(s) in writing of such effectiveness. The Company and the Parent will take all other action necessary or appropriate to permit the offering and sale of the Notes to continue as contemplated
in the expired Registration Statement. References herein to the “Registration Statement” shall include such new automatic shelf registration statement or such new shelf registration statement or post-effective amendment, as the case may be.
(n) Eligibility of Automatic Shelf Registration Statement Form. If at any time when Notes remain unsold by the Underwriters the Company or the Parent receives a notice from the
Commission pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company and the Parent will (i) promptly notify the Representative(s) in writing, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating to such Notes, in form and substance satisfactory to the Underwriters, (iii) use its respective best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable and (iv) promptly notify the Representative(s) in writing of such effectiveness. The Company and the Parent will take all other action necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the Rule 401(g)(2) notice or for which the Company and the Parent has otherwise become ineligible. References herein to the
“Registration Statement” shall include such new registration statement or post-effective amendment, as the case may be.
(o) Certification Regarding Beneficial Owners. The Company and the Parent will each deliver to the Representative(s), upon the reasonable request of the Representative(s) at or
prior to the Closing Time, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional
supporting documentation as the Representative(s) may reasonably request in connection with the verification of the foregoing certification.
17
(p) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be
expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Notes.
(q) DTC. The Company will cooperate with the Underwriters and use its best efforts to permit the Notes to be eligible for clearance, settlement and trading through the
facilities of DTC.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including without limitation (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer
Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of
the Notes to the Underwriters, including any transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Notes to the Underwriters, (iv) all costs and expenses incurred in connection with the preparation
and execution of the Operative Documents and the DTC Agreement, (v) the fees and disbursements of the Company’s counsel, accountants and other advisors, (vi) the qualification of the Notes under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Notes, including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the Representative(s) and officers of the Company and any such consultants, and the
cost of aircraft and other transportation chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA, if
required, of the terms of the sale of the Notes, (ix) any fees payable in connection with the rating of the Notes by the rating agencies, (x) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (xi) the fees and expenses of making the Notes eligible for clearance, settlement and trading
through the facilities of DTC, (xii) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the
Notes made by the Underwriters caused by a breach of the representation contained in the second sentence of Section 1(a)(ii), (xiii) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement, and (xiv) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this
Section. Except as provided in this Section 4 and Sections 6 and 7 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
(b) Termination of Agreement. If this Agreement is terminated by the Representative(s) in accordance with the provisions of Section 5, Section 9(a) or Section 10 hereof, the Company shall reimburse the
Underwriters for all of their reasonable and documented out‑of‑pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the
Parent contained herein or in certificates of any officer of the Parent or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company and the Parent of their respective covenants and other
obligations hereunder, and to the following further conditions:
18
(a) Effectiveness of Registration Statement, etc. The Registration Statement was filed by the Company and the Parent with the Commission not earlier than three years prior to
the date hereof and became effective upon filing in accordance with Rule 462(e). Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule
424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto
has been issued under the 1933 Act, no notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company or the Parent, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s or the Parent’s
knowledge, contemplated. Each of the Company and the Parent has complied with each request (if any) from the Commission for additional information. The Company shall have paid the required Commission filing fees relating to the Notes within
the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the Representative(s) shall have received the favorable opinion and negative assurance letter, dated the Closing Time,
of Sidley Austin LLP, counsel for the Company and the Parent, in form and substance satisfactory to the Representative(s), together with signed or reproduced copies of such letter for each of the other Underwriters.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the Representative(s) shall have received the favorable opinion and negative assurance letter, dated the Closing
Time, of Davis Polk & Wardwell LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters with respect to the matters reasonably requested by the Representative(s). In
giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal securities laws of the United States, upon the opinions of counsel satisfactory to
the Representative(s). Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other Representative(s) of the Parent and its
subsidiaries and certificates of public officials.
(d) Officers’ Certificate. At the Closing Time, the Representative(s) shall have received a certificate of the Chief Executive Officer or the President of the Company and the
Parent or of the chief financial or chief accounting officer of the Company and the Parent, dated the Closing Time, to the effect that (i) since the respective dates as of which information is given in the Registration Statement, the General
Disclosure Package or the Prospectus, there has been no Material Adverse Effect, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as
of the Closing Time, except those representations that address matters only as of a particular date, which are true and correct as of such date, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) the conditions specified in Section 5(a) hereof have been satisfied.
(e) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the Representative(s) shall have received from Deloitte & Touche LLP a letter, dated such
date, in form and substance satisfactory to the Representative(s), together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
19
(f) Opinion of General Counsel. The Company shall have requested and caused the associate general counsel of the Company to furnish the Representatives an opinion, dated the day
of the Closing Time and addressed to the Representatives.
(g) Bring-down Comfort Letter. At the Closing Time, the Representative(s) shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant to Section 5(e) hereof, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(h) No Objection. If a filing with FINRA is required, FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements relating to the offering of the Notes.
(i) No Important Changes. Since the execution of this Agreement, (i) in the judgment of the Representative(s), since the date hereof or the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, there shall not have occurred any Material Adverse Effect and (ii) there shall not have been any change or decrease specified in the letter
or letters referred to in Section 5(e) hereof which is, in the sole judgment of the Representative(s), so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes.
(j) Ratings. Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s or the Parent’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(k) Clearance, Settlement and Trading. Prior to the Closing Time, the Company and DTC shall have executed and delivered the Letter of Representations, dated the Closing Time,
and the Notes shall be eligible for clearance, settlement and trading through the facilities of DTC.
(l) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company and the Parent in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Representative(s) and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by
the Representative(s) by notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8,
14, 15 and 16 shall survive any such termination and remain in full force and effect.
20
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Parent, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates (as such term is
defined in Rule 501(b) of the 1933 Act Regulations (each, an “Affiliate”)), selling agents, officers and directors and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any
and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any
information deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B)
in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Notes (“Marketing Materials”),
including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any arbitrator, court, governmental body, regulatory
body, administrative agency or other authority, body or agency (each, a “Governmental Authority”), commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) hereof) any such settlement is effected with the written consent of the Company;
(iii) against any and
all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by
any Governmental Authority, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, the Parent, each of their respective
directors, each of their respective officers who signed the Registration Statement, and each person, if any, who controls the Company or the Parent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with the Underwriter Information.
21
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) hereof, counsel to the indemnified parties
shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) hereof, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the prior written consent of the indemnified party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section
6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and the Parent, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Parent, on
the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
22
The relative benefits received by the Company and the Parent, on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company and
the Parent, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Notes as set
forth on the cover of the Prospectus.
The relative fault of the Company and the Parent, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Parent or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Parent and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Notes underwritten by it and distributed to the public.
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.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter’s Affiliates, officers, directors and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company or the Parent, each officer of the Company or the Parent who
signed the Registration Statement, and each person, if any, who controls the Company or the Parent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company and the
Parent. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Notes set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Parent or any of
its subsidiaries submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates, officers, directors and selling agents, any person
controlling any Underwriter or the Company’s or Parent’s officers or directors or any person controlling the Company or the Parent and (ii) delivery of and payment for the Notes.
23
SECTION 9. Termination of Agreement.
(a) Termination. The Representative(s) may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time, (i) if there has been, in the
judgment of the Representative(s), since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material
Adverse Effect, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative(s), impracticable
or inadvisable to proceed with the completion of the offering of the Notes or to enforce contracts for the sale of the Notes, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or the New York Stock Exchange, or (iv) if trading generally on the New York Stock Exchange has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other Governmental Authority, or (v) if a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal, New York or Delaware authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15 and 16 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time to purchase the Notes which it or they are obligated to purchase under this
Agreement (the “Defaulted Securities”), the Representative(s) shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non‑defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representative(s) shall not have
completed such arrangements within such 24‑hour period, then:
(i) if
the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Notes to be purchased on such date, each of the non‑defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non‑defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, this Agreement shall terminate without liability on the part of any non‑defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement either the Representative(s) or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As
used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
24
SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the Representative(s), care of Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (fax: 646-834-8133); BofA Securities,
Inc. at 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Facsimile: 212-901-7881, Attention: High Grade Debt Capital Markets Transaction Management/Legal; Mizuho Securities USA LLC, 1271 Avenue of the Americas, New York, NY
10020, Attn: Debt Capital Markets; Email: [email protected]; MUFG Securities Americas Inc., 1221 Avenue of the Americas, 6th Floor, New York, New York 10020, Attention: Capital Markets Group, facsimile: (646) 434-3455; Truist
Securities, Inc., 50 Hudson Yards, 70th Floor, New York, New York 10001, Attn: Legal Department; and notices to the Company will be mailed, delivered or telefaxed to 972-556-6335 and confirmed to it at 6555 Sierra Drive, Irving, Texas 75039,
attention of the Legal Department
SECTION 12. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement, (b) in connection with the offering of the Notes and the process leading thereto, each Underwriter is
and has been acting solely as a principal and is not the agent or fiduciary of the Company or any of its subsidiaries or their respective interest holders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume
an advisory or fiduciary responsibility in favor of the Company with respect to the offering of the Notes or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its
subsidiaries on other matters) or any other obligation to the Company with respect to the offering of the Notes except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of the Company, (e) the Underwriters have not provided any legal, accounting, financial, regulatory, investment or tax advice with respect to the offering of the
Notes and the Company has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate and (f) none of the activities of the Underwriters in connection with the transactions
contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with respect to any entity or natural person.
SECTION 13. Recognition of the U.S. Special Resolution Regimes.
(a) In the event
that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be
effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event
that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such
Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United
States.
For purposes of this Section 13, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the
regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
25
SECTION 14. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company and the Parent and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons, Affiliates, selling agents, officers and
directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons, Affiliates, selling agents, officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial by Jury. Each of the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Underwriters 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 Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent to Jurisdiction. Each of the parties hereto agrees that any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby
shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of
Manhattan (collectively, the “Specified Courts”), and irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any Specified Court, as to which such jurisdiction is non-exclusive) of the Specified Courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall
be effective service of process for any suit, action or proceeding brought in any Specified Court. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding in
the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim in any Specified Court that any such suit, action or proceeding brought in any Specified Court has been brought in an inconvenient forum.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement. The words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed
to include the keeping of records in electronic form and use of electronic signatures complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the New York Electronic Signature and Records Act or other
applicable law (e.g., www.docusign.com), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may
be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
26
SECTION 20. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 21. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph
or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 22. Research Analyst Independence. Each of the Company and the Parent acknowledges that the Underwriters’ research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Parent, its subsidiaries and/or the offering of the Notes that differ from the views of their respective investment banking divisions. Each of the Company and the Parent hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company or the Parent may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and
research departments may be different from or inconsistent with the views or advice communicated to the Company or the Parent by such Underwriters’ investment banking divisions. Each of the Company and the Parent acknowledges that each of
the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or
equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
SECTION 23. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement shall not become effective until the execution of this Agreement by the parties hereto. This Agreement may not be
amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 6 and the contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 6 and 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the
Registration Statement, the General Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the 1933 Act and the 1934 Act.
SECTION 24. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are
required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow
the Underwriters to properly identify their respective clients.
27
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement between the Underwriters, the Company and the Parent in accordance with its terms.
|
Very truly yours,
|
|||
|
VISTRA OPERATIONS COMPANY LLC
|
|||
|
By:
|
/s/ William M. Quinn
|
||
|
Name: William M. Quinn
|
|||
|
Title: Senior Vice President and Treasurer
|
|||
|
VISTRA CORP.
|
|||
|
By:
|
/s/ William M. Quinn
|
||
|
Name: William M. Quinn
|
|||
|
Title: Senior Vice President and Treasurer
|
|||
28
|
CONFIRMED AND ACCEPTED,
|
||
|
as of the date first above written:
|
||
|
BARCLAYS CAPITAL INC.
|
||
|
By:
|
/s/ John Lembeck
|
|
|
Name: John Lembeck
|
||
|
Title: Managing Director
|
||
|
BOFA SECURITIES, INC.
|
||
|
By:
|
/s/ Robert Colucci
|
|
|
Name: Robert Colucci
|
||
|
Title: Managing Director
|
||
|
MIZUHO SECURITIES USA LLC
|
||
|
By:
|
/s/ Stephen E. Leamer
|
|
|
Name: Stephen E. Leamer
|
||
|
Title: Managing Director
|
||
|
MUFG SECURITIES AMERICAS INC.
|
||
|
By:
|
/s/ Maheen Baig
|
|
|
Name: Maheen Baig
|
||
|
Title: Managing Director
|
||
|
TRUIST SECURITIES, INC.
|
||
|
By:
|
/s/ Rob Nordlinger
|
|
|
Name: Rob Nordlinger
|
||
|
Title: Managing Director
|
||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
29
SCHEDULE A
|
Underwriters
|
Aggregate
Principal
Amount of
Series A
Notes to be
Purchased
|
Aggregate
Principal
Amount of
Series B
Notes to be
Purchased
|
||||||
|
Barclays Capital Inc.
|
$
|
97,750,000
|
$
|
74,750,000
|
||||
|
BofA Securities, Inc.
|
97,750,000
|
74,750,000
|
||||||
|
Mizuho Securities USA LLC
|
97,750,000
|
74,750,000
|
||||||
|
MUFG Securities Americas Inc.
|
97,750,000
|
74,750,000
|
||||||
|
of Truist Sec Truist Securities, Inc.
|
97,750,000
|
74,750,000
|
||||||
|
BBVA Securities Inc.
|
22,950,000
|
17,550,000
|
||||||
|
BMO Capital Markets Corp.
|
22,950,000
|
17,550,000
|
||||||
|
Citigroup Global Markets Inc.
|
22,950,000
|
17,550,000
|
||||||
|
Credit Agricole Securities (USA) Inc.
|
22,950,000
|
17,550,000
|
||||||
|
Goldman Sachs & Co. LLC
|
22,950,000
|
17,550,000
|
||||||
|
J.P. Morgan Securities LLC
|
22,950,000
|
17,550,000
|
||||||
|
Morgan Stanley & Co. LLC
|
22,950,000
|
17,550,000
|
||||||
|
Natixis Securities Americas LLC
|
22,950,000
|
17,550,000
|
||||||
|
PNC Capital Markets LLC
|
22,950,000
|
17,550,000
|
||||||
|
RBC Capital Markets, LLC
|
22,950,000
|
17,550,000
|
||||||
|
Santander US Capital Markets LLC
|
22,950,000
|
17,550,000
|
||||||
|
Scotia Capital (USA) Inc.
|
22,950,000
|
17,550,000
|
||||||
|
SMBC Nikko Securities America, Inc.
|
22,950,000
|
17,550,000
|
||||||
|
SG Americas Securities, LLC
|
22,950,000
|
17,550,000
|
||||||
|
Wells Fargo Securities, LLC
|
22,950,000
|
17,550,000
|
||||||
|
KeyBanc Capital Markets Inc.
|
8,500,000
|
6,500,000
|
||||||
|
U.S. Bancorp Investments, Inc.
|
8,500,000
|
6,500,000
|
||||||
|
Total
|
$
|
850,000,000
|
$
|
650,000,000
|
||||
SCHEDULE B
Issuer Free Writing Prospectuses
|
1.
|
Final Term Sheet for the Notes
|
SCHEDULE C
Electronic Road Shows and Other Written Communications
|
1.
|
Investor Presentation dated September 2026
|
SCHEDULE D
Term Sheet
Attached.
ANNEX A
Significant Subsidiaries
|
Subsidiary
|
State of Incorporation or Organization
|
|||
|
1.
|
Ambit Energy Holdings, LLC
|
Texas
|
||
|
2.
|
Ambit Holdings, LLC
|
Texas
|
||
|
3.
|
Ambit Texas, LLC
|
Texas
|
||
|
4.
|
Comanche Peak Power Company LLC
|
Delaware
|
||
|
5.
|
Crius Energy Holdings, LLC
|
Delaware
|
||
|
6.
|
Crius Energy, LLC
|
Delaware
|
||
|
7.
|
Dynegy Coal Holdco, LLC
|
Delaware
|
||
|
8.
|
Dynegy Energy Services (East), LLC
|
Delaware
|
||
|
9.
|
Dynegy Energy Services, LLC
|
Delaware
|
||
|
10.
|
Dynegy Marketing and Trade, LLC
|
Delaware
|
||
|
11.
|
Dynegy Midwest Generation, LLC
|
Delaware
|
||
|
12.
|
Dynegy Resources Generating HoldCo, LLC
|
Delaware
|
||
|
13.
|
Energy Harbor Holdings LLC (f/k/a Energy Harbor Corp.)
|
Delaware
|
||
|
14.
|
Energy Harbor LLC
|
Delaware
|
||
|
15.
|
Energy Harbor Nuclear Generation LLC
|
Delaware
|
||
|
16.
|
Equipower Resources Corp.
|
Delaware
|
||
|
17.
|
Illinois Power Marketing Company, LLC
|
Delaware
|
||
|
18.
|
Kincaid Generation, L.L.C.
|
Virginia
|
||
|
19.
|
La Frontera Holdings, LLC
|
Delaware
|
||
|
20.
|
Luminant Commercial Asset Management LLC
|
Ohio
|
||
|
21.
|
Luminant Energy Company LLC
|
Texas
|
||
|
22.
|
Luminant Generation Company LLC
|
Texas
|
||
|
23.
|
Luminant Power LLC
|
Delaware
|
||
|
24.
|
Oak Grove Management Company LLC
|
Delaware
|
||
|
25.
|
TXU Energy Retail Company LLC
|
Texas
|
||
|
26.
|
Value Based Brands LLC
|
Texas
|
||
|
27.
|
Vistra Asset Company LLC
|
Delaware
|
||
|
28.
|
Vistra Intermediate Company LLC
|
Delaware
|
||
|
29.
|
Vistra Operations Company LLC
|
Delaware
|
||
|
30.
|
Vistra Preferred, LLC
|
Delaware
|
||
|
31.
|
Vistra Vision Holdings I LLC
|
Delaware
|
||
|
32.
|
Vistra Vision Holdings II LLC
|
Delaware
|
||
|
33.
|
Vistra Vision LLC
|
Delaware
|
||
|
34.
|
Volt Asset Company, LLC
|
Delaware
|
Exhibit 4.1
VISTRA OPERATIONS COMPANY LLC,
as Issuer
VISTRA CORP.,
as Guarantor
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of September 24, 2026
Junior Subordinated Debt Securities
TABLE OF CONTENTS
|
Page
|
||
|
Article 1
|
||
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
||
|
Section 1.01
|
Definitions.
|
1
|
|
Section 1.02
|
Other Definitions.
|
12
|
|
Section 1.03
|
Rules of Construction.
|
12
|
|
Section 1.04
|
Incorporation by Reference of the Trust Indenture Act.
|
13
|
|
Article 2
|
||
|
THE SECURITIES
|
||
|
Section 2.01
|
Issuable in Series.
|
13
|
|
Section 2.02
|
Execution and Authentication.
|
16
|
|
Section 2.03
|
Registrar and Paying Agent.
|
17
|
|
Section 2.04
|
Paying Agent to Hold Money in Trust.
|
17
|
|
Section 2.05
|
Holder Lists.
|
17
|
|
Section 2.06
|
Transfer and Exchange.
|
18
|
|
Section 2.07
|
[Reserved].
|
20
|
|
Section 2.08
|
[Reserved].
|
20
|
|
Section 2.09
|
Replacement Securities.
|
20
|
|
Section 2.10
|
Outstanding Securities.
|
20
|
|
Section 2.11
|
Treasury Securities.
|
21
|
|
Section 2.12
|
Temporary Securities.
|
21
|
|
Section 2.13
|
Cancellation.
|
21
|
|
Section 2.14
|
Defaulted Interest.
|
21
|
|
Article 3
|
||
|
REDEMPTION AND PREPAYMENT
|
||
|
Section 3.01
|
Notices to Trustee.
|
22
|
|
Section 3.02
|
Selection of Securities to Be Redeemed.
|
22
|
|
Section 3.03
|
Notice of Redemption.
|
23
|
|
Section 3.04
|
Effect of Notice of Redemption.
|
24
|
|
Section 3.05
|
Deposit of Redemption Price.
|
25
|
|
Section 3.06
|
Securities Redeemed in Part.
|
25
|
|
Section 3.07
|
Calculation of Redemption Price.
|
25
|
|
Article 4
|
||
|
COVENANTS
|
||
|
Section 4.01
|
Payment of Securities.
|
26
|
|
Section 4.02
|
Maintenance of Office or Agency.
|
26
|
|
Section 4.03
|
Reports.
|
26
|
|
Section 4.04
|
Compliance Certificate.
|
28
|
-i-
|
Article 5
|
||
|
SUCCESSORS
|
||
|
Section 5.01
|
Merger, Consolidation or Sale of Assets.
|
28
|
|
Section 5.02
|
Successor Company Substituted.
|
29
|
|
Article 6
|
||
|
DEFAULTS AND REMEDIES
|
||
|
Section 6.01
|
Events of Default.
|
30
|
|
Section 6.02
|
Acceleration.
|
31
|
|
Section 6.03
|
Waiver of Past Defaults.
|
31
|
|
Section 6.04
|
Control by Majority.
|
31
|
|
Section 6.05
|
Limitation on Suits.
|
31
|
|
Section 6.06
|
Collection Suit by Trustee.
|
32
|
|
Section 6.07
|
Priorities.
|
32
|
|
Section 6.08
|
Trustee May File Proofs of Claim.
|
33
|
|
Section 6.09
|
Securityholder Directions.
|
33
|
|
Section 6.10
|
Rights of Holders to Receive Payment.
|
35
|
|
Section 6.11
|
Undertaking for Costs.
|
35
|
|
Article 7
|
||
|
TRUSTEE
|
||
|
Section 7.01
|
Duties of Trustee.
|
35
|
|
Section 7.02
|
Rights of Trustee.
|
36
|
|
Section 7.03
|
Individual Rights of Trustee.
|
38
|
|
Section 7.04
|
Trustee’s Disclaimer.
|
38
|
|
Section 7.05
|
Notice of Defaults.
|
38
|
|
Section 7.06
|
Compensation and Indemnity.
|
39
|
|
Section 7.07
|
Replacement of Trustee.
|
40
|
|
Section 7.08
|
Successor Trustee by Merger, etc.
|
41
|
|
Section 7.09
|
Eligibility; Disqualification.
|
41
|
|
Section 7.10
|
Reports by Trustee to Holders.
|
41
|
|
Section 7.11
|
Preferential Collection of Claims Against the Issuer.
|
41
|
|
Article 8
|
||
|
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
||
|
Section 8.01
|
Option to Effect Legal Defeasance or Covenant Defeasance.
|
42
|
|
Section 8.02
|
Legal Defeasance and Discharge.
|
42
|
|
Section 8.03
|
Covenant Defeasance.
|
43
|
|
Section 8.04
|
Conditions to Legal or Covenant Defeasance.
|
43
|
|
Section 8.05
|
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
|
44
|
|
Section 8.06
|
Repayment to the Company or the Guarantor.
|
45
|
|
Section 8.07
|
Reinstatement.
|
45
|
-ii-
|
Article 9
|
||
|
AMENDMENT, SUPPLEMENT AND WAIVER
|
||
|
Section 9.01
|
Without Consent of Holders of Securities.
|
46
|
|
Section 9.02
|
With Consent of Holders of Securities.
|
47
|
|
Section 9.03
|
Revocation and Effect of Consents.
|
49
|
|
Section 9.04
|
Notation on or Exchange of Securities.
|
49
|
|
Section 9.05
|
Trustee to Sign Amendments, etc.
|
49
|
|
Article 10
|
||
|
GUARANTEE
|
||
|
Section 10.01
|
Guarantee.
|
49
|
|
Section 10.02
|
Proceedings Against Guarantor.
|
50
|
|
Section 10.03
|
Subrogation.
|
51
|
|
Section 10.04
|
Guarantee for Benefit of Holders.
|
51
|
|
Article 11
|
||
|
SATISFACTION AND DISCHARGE
|
||
|
Section 11.01
|
Satisfaction and Discharge.
|
51
|
|
Section 11.02
|
Application of Trust Money.
|
53
|
|
Article 12
|
||
|
SUBORDINATION OF SECURITIES AND GUARANTEE
|
||
|
Section 12.01
|
Securities and Guarantee Subordinated to Senior Indebtedness.
|
53
|
|
Section 12.02
|
No Payment on Securities in Certain Circumstances.
|
54
|
|
Section 12.03
|
Securities and Guarantee Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation or Reorganization.
|
55
|
|
Section 12.04
|
Subrogation to Rights of Holders of Senior Indebtedness.
|
56
|
|
Section 12.05
|
Obligations of the Company and the Guarantor Unconditional.
|
56
|
|
Section 12.06
|
Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.
|
57
|
|
Section 12.07
|
Application by Trustee of Amounts Deposited with It.
|
58
|
|
Section 12.08
|
Subordination Rights Not Impaired by Acts or Omissions of the Company, the Guarantor or Holders of Senior Indebtedness.
|
58
|
|
Section 12.09
|
Trustee to Effectuate Subordination of Securities and Guarantee.
|
58
|
|
Section 12.10
|
Right of Trustee to Hold Senior Indebtedness.
|
59
|
|
Section 12.11
|
Article 12 Not to Prevent Events of Default.
|
59
|
|
Section 12.12
|
No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
|
59
|
|
Section 12.13
|
Article Applicable to Paying Agent.
|
59
|
|
Article 13
|
||
|
MISCELLANEOUS
|
||
|
Section 13.01
|
Notices.
|
60
|
|
Section 13.02
|
Certificate and Opinion as to Conditions Precedent.
|
61
|
-iii-
|
Section 13.03
|
Statements Required in Certificate or Opinion.
|
61
|
|
Section 13.04
|
Rules by Trustee and Agents.
|
62
|
|
Section 13.05
|
No Personal Liability of Directors, Officers, Employees and Stockholders.
|
62
|
|
Section 13.06
|
Governing Law.
|
62
|
|
Section 13.07
|
Waiver of Immunity.
|
63
|
|
Section 13.08
|
Waiver of Jury Trials.
|
63
|
|
Section 13.09
|
No Adverse Interpretation of Other Agreements.
|
63
|
|
Section 13.10
|
Successors.
|
63
|
|
Section 13.11
|
USA Patriot Act.
|
63
|
|
Section 13.12
|
Severability.
|
64
|
|
Section 13.13
|
Counterpart Originals.
|
64
|
|
Section 13.14
|
Table of Contents, Headings, etc.
|
64
|
|
Section 13.15
|
Communication by Holders of Securities with Other Holders of Securities.
|
64
|
|
Section 13.16
|
Trust Indenture Act Controls.
|
64
|
-iv-
INDENTURE, dated as of September 24, 2026, by and among Vistra Operations Company LLC, a Delaware limited liability company, as the issuer (the “Company”), Vistra Corp., a Delaware corporation, as guarantor (“Guarantor”), and Wilmington Trust, National Association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Securities issued pursuant to this Indenture:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
| Section 1.01 |
Definitions.
|
For all purposes of this Indenture, the following terms shall have the respective meanings set forth in this Section. For purposes of any series of Securities issued under this
Indenture, the Supplemental Indenture in respect of such series of Securities will specify the defined terms to be used therein, which may include some or all of the terms contained in this Section 1.01.
“Additional Amounts” means any additional amounts required by the express terms of a Security or by or pursuant to a Board Resolution,
under circumstances specified therein or pursuant thereto, to be paid by the Company or the Guarantor, as the case may be, with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to
such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities or by contract. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.
“Applicable Law” means, as to any Person, any ordinance, law, treaty, rule or regulation or any determination, ruling or other
directive by and from an arbitrator or a court or other Governmental Authority, in each case, applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property is subject.
“Asset Disposition” means “Disposition” as defined in the Credit Agreement as in effect on the applicable Issue Date.
-1-
“Attributable Debt” means, in respect of a sale and leaseback transaction, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended.
Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
“Authorized Officer” means, with respect to (a) delivering an Officer’s Certificate pursuant to this Indenture, the chief executive
officer, the president, the chief financial officer, the treasurer, any assistant treasurer, the principal accounting officer or any other person of the Company having substantially the same responsibilities as the aforementioned officers, and (b)
any other matter in connection with this Indenture, the chief executive officer, the chief financial officer, the treasurer, any assistant treasurer, the general counsel or a responsible financial or accounting officer of the Company.
“Bankruptcy Law” means Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq., as amended from time to time, or any similar
federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “Beneficially
Owns,” “Beneficially Owned” and “Beneficial Ownership” have a corresponding meaning.
“Board of Directors” means:
(a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(b) with respect to a partnership, the board of directors of the general partner of the partnership;
(c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(d) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means, unless otherwise provided by a Supplemental Indenture hereto for a particular series of Securities, each day
other than a Saturday, a Sunday or a day on which banking institutions in New York City (and, with respect to payments, in the place of payment) are authorized or required by law to remain closed.
“Capital Stock” means:
(a) in the case of a corporation, corporate stock;
-2-
(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of
corporate stock;
(c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Capitalized Lease Obligations” means, at the time any determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, and the maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon
which such lease may be prepaid by the lessee without payment of a penalty.
“Cash Equivalents” means “Permitted Investment” as defined in the Credit Agreement as in effect on the date of this Indenture.
“Company” means Vistra Operations Company LLC and any and all successors thereto.
“Company Order” means a written order signed in the name of the Company by one Authorized Officer.
“Consolidated EBITDA” means “Consolidated EBITDA” as defined in the Credit Agreement as in effect on the date of this Indenture.
For purposes of calculating Consolidated EBITDA, Specified Transactions that have been made (i) during the applicable Test Period and (ii) subsequent to such Test Period and
prior to or simultaneously with the event for which such calculation is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in
Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that
subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Company or any Restricted Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required
adjustment pursuant to this definition, then the Consolidated EBITDA shall be calculated to give pro forma effect thereto in accordance with this definition.
-3-
Whenever pro forma effect is to be given to a Specified Transaction or implementation of an operating initiative, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company and include, for the avoidance of doubt, the amount of cost savings, operating expense
reductions, other operating improvements and synergies that are reasonably identifiable, factually supportable and projected by the Company in good faith to be reasonably anticipated to be realizable within 24 months after the closing date of such
Specified Transaction or implementation of an operating initiative (provided, that to the extent any such operational changes are not associated with a transaction, such changes shall be limited to those for
which all steps have been taken for realizing such savings and are factually supportable, reasonably identifiable and supported by an Officer’s Certificate delivered to the Trustee) (calculated on a pro forma basis
as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and
synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions; provided that any
increase in Consolidated EBITDA as a result of cost savings, operating expense reductions, other operating improvements and synergies shall be subject to the limitations set forth in the definition of “Consolidated EBITDA.”
“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in Section 13.01 hereof or such other
address as to which the Trustee may give notice to the Company.
“Credit Agreement” means the credit agreement entered into on October 3, 2016 (as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time), among the Company, as borrower, Vistra Intermediate Company LLC, Citibank, N.A., as administrative agent and as collateral agent, various lenders and letter of credit issuers party
thereto, and the other parties named therein.
“Custodian” means the Trustee, as custodian with respect to the Securities in global form, or any successor entity thereto.
“Default” means any event, act or condition which with notice or lapse of time, or both, would (without cure or waiver hereunder)
constitute an Event of Default.
“Definitive Security” means a certificated Security registered in the name of the Holder thereof and issued in accordance with Section
2.06 hereof. Definitive Securities with respect to each series of Securities will be in the form specified in the Supplemental Indenture pursuant to which such series of Securities is created.
“Depository” means DTC, its nominees and their respective successors. If at any time there is more than one such person acting as
Depository, “Depository” as used with respect to the Securities of any series shall mean the Depository with respect to the Securities of such series.
“Derivative Instrument”, with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash
or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Securities (other than a Screened Affiliate) is a party (whether or not requiring
further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Securities and/or the creditworthiness of the Company or Vistra (the “Performance References”).
-4-
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of
the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Securities mature.
“Domestic Subsidiary” means any Subsidiary of the Company that was incorporated or organized under the laws of the United States, any
state thereof or the District of Columbia.
“DTC” means The Depository Trust Company.
“Environmental Law” means any applicable federal, state, foreign or local statute, law, rule, regulation, ordinance, code or rule of
common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including without limitation any binding judicial or administrative order, consent decree or judgment, relating to
the environment, or to human health or safety (in each case to the extent relating to exposure to Hazardous Materials) or Hazardous Materials.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Foreign Subsidiary” of any Person means any Subsidiary of such Person that is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time; provided, however, that, if (a) any operating lease would be recharacterized as a capital lease due to
changes in the accounting treatment of such operating leases under GAAP since the applicable Issue Date, then, solely with respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on such Issue Date and
(b) if the Company notifies the Trustee that it desires to eliminate the effect of any change occurring after the applicable Issue Date in GAAP or in the application thereof on the operation of any provision of the Indenture, regardless of whether
any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance herewith.
-5-
“Global Securities” means, individually and collectively, each Security deposited with or on behalf of and registered in the name of
the Depository for such series or its nominee, issued in accordance with Section 2.01 hereof.
“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America (including any agency
or instrumentality thereof) for the payment of which obligations or guarantees the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the Company’s option.
“Governmental Authority” means any nation, sovereign or government, any state, province, territory or other political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity or authority exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, including a central bank, stock exchange, or any governmental or non-governmental authority regulating the generation and/or transmission of electricity, including the Public Utility Commission of Texas or the Electric
Reliability Council of Texas or any other ISO or RTO or any other entity succeeding thereto.
“Guarantee” means the guarantee by the Guarantor of the Company’s obligations under this Indenture, the applicable Supplemental
Indenture for any series of Securities and the applicable series of Securities, executed pursuant to the provisions of the applicable Supplemental Indenture.
“Guarantor” means the Person named as a “Guarantor” in the first paragraph of this instrument,
until a successor to such Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
“Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants” or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:
(a) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange,
interest rate or commodity collar agreements; or
-6-
(b) (1) agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, commodity prices or commodity
transportation or transmission pricing or availability; (2) any netting arrangements, power purchase and sale agreements, fuel purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in value with
fluctuations in energy, power or gas prices; and (3) agreements or arrangements for commercial or trading activities with respect to the purchase, transmission, distribution, sale, lease or hedge of any energy related commodity or service.
“Holder” means a Person in whose name a Security is registered on the Registrar’s books.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade
payables, except as provided in clause (e) below), whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(c) in respect of bankers’ acceptances;
(d) representing Capitalized Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(e) representing the balance deferred and unpaid of the purchase price of any property (including trade payables) or services due more than six months after
such property is acquired or such services are completed; or
(f) representing the net amount owing under any Hedging Obligations;
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the
extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; provided, that the amount of such Indebtedness shall be deemed not to exceed the lesser of the
amount secured by such Lien and the value of the Person’s property securing such Lien.
“Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to time in accordance with its terms and
shall include the form and terms of particular series of Securities established as contemplated hereunder.
“Initial Notes” means the $850,000,000 aggregate principal amount of 7.000% Series A Junior Subordinated Notes due 2057 and the
$650,000,000 aggregate principal amount of 7.250% Series B Junior Subordinated Notes due 2057, issued under the Supplemental Indenture dated as of the date of this Indenture.
-7-
“Investment” means, with respect to any Person, an investment by such Person in other Persons (including Affiliates) in the forms of
loans (including guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees), purchases or other acquisitions for consideration of Indebtedness, Equity Interests
or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
“ISO” means “independent system operator,” as further defined by Federal Energy Regulatory
Commission policies, orders and regulations.
“Issue Date” means, with respect to a series of Securities, the date on which such series of Securities is issued under a Supplemental
Indenture.
“Lien” means, with respect to any asset, any mortgage, pledge, security interest, hypothecation, collateral assignment, lien (statutory
or other) or similar encumbrance (including any conditional sale or other title retention agreement or any lease or license in the nature thereof); provided that in no event shall an operating lease be
deemed to be a Lien.
“Long Derivative Instrument” means a Derivative Instrument (a) the value of which generally increases, and/or the payment or delivery
obligations under which generally decrease, with positive changes to the Performance References and/or (b) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to
the Performance References.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating
Organization.
“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the
meaning of Section 3(a)(62) under the Exchange Act.
“Necessary Capital Expenditures” means capital expenditures that are required by Applicable Law (other than Environmental Laws) or
undertaken voluntarily or involuntarily for health and safety reasons or to mitigate potential catastrophic failure of a unit. The term “Necessary Capital Expenditures” does not include any capital expenditure undertaken primarily to increase the
efficiency of, expand or re-power any power generation facility.
“Net Short” means, with respect to a Holder or Beneficial Owner, as of a date of determination, either (a) the value of its Short
Derivative Instruments exceeds the sum of the (1) the value of its Securities plus (2) the value of its Long Derivative Instruments as of such date of determination or (b) it is reasonably expected that such would have been the case were a Failure
to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Company or the Guarantor immediately prior to such date of determination.
-8-
“Non-Recourse Debt” means Indebtedness as to which neither the Company nor the Guarantor is liable as a guarantor or otherwise.
“Note Documents” means this Indenture, any Supplemental Indenture pursuant to which a series of Securities is created, the Securities
and the Guarantee.
“Obligations” means any principal (including reimbursement obligations and obligations to
provide cash collateral with respect to letters of credit, whether or not drawn), interest (including, to the extent legally permitted, all interest accrued thereon after the commencement of any insolvency or liquidation proceeding at the rate,
including any applicable post-default rate even if such interest is not enforceable, allowable or allowed as a claim in such proceeding), premium (if any), penalties, fees, charges, expenses, indemnifications, reimbursements, damages, guarantees,
other liabilities or amounts payable.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, Assistant Secretary or any Vice-President of such Person.
“Officer’s Certificate” means a certificate signed on behalf of the Company or the Guarantor, as applicable, by an Authorized Officer
thereof, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section
13.03 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
“Paying Agent” means the office or agency where Securities may be presented for payment. The term “Paying Agent” includes any
additional paying agent.
“Performance References” has the meaning set forth in the definition of “Derivative Instrument.”
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
“Qualifying Equity Interests” means Equity Interests of the Company other than Disqualified Stock.
“Registrar” means the office or agency where Securities may be presented for registration of transfer or for exchange. The term
“Registrar” includes any co-registrar.
“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department who shall have
direct responsibility for the administration of the Indenture and any other officer of the Trustee to whom any corporate trust matter relating to the Indenture is referred because of such officer’s knowledge of and familiarity with the particular
subject.
-9-
“Restricted Subsidiary” means “Restricted Subsidiary” as defined in the Credit Agreement as in effect on the date of this Indenture.
“RTO” means “regional transmission organization,” as further defined by Federal Energy Regulatory Commission policies, orders and
regulations.
“Rule 144” means Rule 144 adopted by the SEC under the Securities Act.
“Rule 144A” means Rule 144A adopted by the SEC under the Securities Act.
“S&P” means S&P Global Ratings (a division of S&P Global, Inc.) or any of its successors or assigns that is a Nationally
Recognized Statistical Rating Organization.
“Screened Affiliate” means any Affiliate of a Holder (a) that makes investment decisions independently from such Holder and any other
Affiliate of such Holder that is not a Screened Affiliate, (b) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing
of information with respect to the Company or its Subsidiaries, (c) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the
Securities, and (d) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Securities.
“SEC” means the United States Securities and Exchange Commission.
“Securities” means all junior subordinated notes of the Company of any series authenticated and delivered under this Indenture,
including through the execution and delivery of a Supplemental Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Indebtedness” unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01,
means (i) all Indebtedness of the Company and, in the case of the related Guarantee, the Guarantor, whether currently outstanding or hereafter created, incurred or assumed, unless, by the terms of the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding, it is provided that such Indebtedness is not superior in right of payment to the Securities, in the case of the Company, or the related Guarantee, in the case of the Guarantor, or
to other Indebtedness which is pari passu with or subordinated to the Securities, in the case of the Company, or the related Guarantee, in the case of the Guarantor, and (ii) any modifications, refunding, deferrals, renewals or extensions of any
such Indebtedness or any securities, notes or other evidences of Indebtedness issued in exchange for such Indebtedness; provided that, unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01, in
no event shall “Senior Indebtedness” include (a) Indebtedness of the Company or the Guarantor owed or owing to any Subsidiary or any officer, director or employee of the Company, the Guarantor or any Subsidiary, (b) Indebtedness to trade creditors
or (c) any liability for taxes owed or owing by the Company or the Guarantor.
-10-
“Short Derivative Instrument” means a Derivative Instrument (a) the value of which generally decreases, and/or the payment or delivery
obligations under which generally increase, with positive changes to the Performance References and/or (b) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to
the Performance References.
“Specified Transaction” means any incurrence or repayment of Indebtedness (other than for working capital purposes) or any Investment
that results in a Person becoming a Subsidiary of the Company, any acquisition permitted under the Indenture, any Asset Disposition, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of
another Person, or any asset sale of a business unit, line of business or division of the Company or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal is scheduled to be paid in the documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
“Subsidiary” means, with respect to any specified Person:
(a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(b) any partnership (1) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (2) the only
general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Supplemental Indenture” means any supplemental indenture entered into pursuant to Section 2.01 hereof to evidence the issuance
of any series of Securities after the date of this Indenture.
“Test Period” means “Test Period” as defined in the Credit Agreement as in effect on the date of this Indenture.
-11-
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Total Assets” means, as of any date of determination, the total consolidated assets of the Company and its Subsidiaries, determined in
accordance with GAAP, as shown on the most recent publicly available balance sheet of the Company, and after giving pro forma effect to any acquisition or disposal of any property or assets consummated
after the date of the applicable balance sheet and on or prior to the date of determination and calculated on a “pro forma” basis consistent with the adjustments set forth in the definition of “Consolidated
EBITDA.”
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
| Section 1.02 |
Other Definitions.
|
|
Term
|
Defined in
|
|
|
“Applicable Premium Deficit”
|
Section 11.01(1)(B)
|
|
|
“Covenant Defeasance”
|
Section 8.03
|
|
|
“Covenant Satisfaction Officer’s Certificate”
|
Section 6.09(b)
|
|
|
“Directing Holder”
|
Section 6.09(a)
|
|
|
“Event of Default”
|
Section 6.01
|
|
|
“Final Decision”
|
Section 6.09(b)
|
|
|
“Legal Defeasance”
|
Section 8.02
|
|
|
“Litigation”
|
Section 6.09(b)
|
|
|
“Payment Default”
|
Section 12.02(a)
|
|
|
“Position Representation”
|
Section 6.09(a)
|
|
|
“Securityholder Direction”
|
Section 6.09(a)
|
|
|
“Successor Company”
|
Section 5.01(a)(1)(B)
|
|
|
“Verification Covenant”
|
Section 6.09(a)
|
|
|
“Verification Covenant Officer’s Certificate”
|
Section 6.09(b)
|
| Section 1.03 |
Rules of Construction.
|
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
-12-
(f) provisions apply to successive events and transactions; and
(g) references to sections of or rules under the Securities Act, TIA or Exchange Act will be deemed to include substitute, replacement or successor sections or rules adopted by
the SEC from time to time.
The terms and provisions contained in this Indenture will apply to any Securities issued from time to time pursuant to this Indenture and the Guarantee thereof, except as may
be otherwise provided in the Supplemental Indenture with respect to such series of Securities.
Section 1.04 Incorporation by Reference of the Trust Indenture Act.
(a) General. Whenever this Indenture refers to a provision of the TIA,
such provision shall be deemed incorporated by reference in and made a part of this Indenture.
(b) Certain Defined Terms. The following TIA terms used in this
Indenture have the following meanings:
(1) “indenture securities” means the Securities and the Guarantee;
(2) “indenture security holder” means a Holder of a Security;
(3) “indenture to be qualified” means the Indenture;
(4) “indenture trustee” or “institutional trustee” means the Trustee; and
(5) “obligor” on the Securities and the Guarantee means the Company and the Guarantor,
respectively, and any successor obligor upon the Securities and the Guarantee, respectively.
All other terms used in the Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC rule under the TIA have the meanings so
assigned to them.
ARTICLE 2
THE SECURITIES
| Section 2.01 |
Issuable in Series.
|
(a) The aggregate amount of Securities that may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more series. All Securities will have the terms set forth in the Supplemental Indenture pursuant to which such series of Securities is created, which Supplemental Indenture will detail the
adoption of the terms of such series of Securities. In the case of Securities of a series to be issued from time to time, the Supplemental Indenture creating such series will detail the adoption of the terms thereof and will provide for the
method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between series in respect of any matters; provided that all series of
Securities shall be equally and ratably entitled to the benefits of this Indenture.
-13-
(b) At or prior to the issuance of any series of Securities, the following terms shall be established in the
Supplemental Indenture in respect of such series and executed and delivered by the Company and the Trustee (and, if applicable, any guarantors of such Securities):
(1) the title of the series (which shall distinguish the Securities of that particular
series from the Securities of any other series);
(2) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the series will be issued;
(3) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 2.06, 2.09,
2.12, 3.06 or 9.04);
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the series shall bear interest, if any, the date or dates from which
such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable or any interest payment date;
(6) the place or places where the principal of and interest, if any, on the Securities of
the series shall be payable, where the Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may
be served, and the method of such payment, if by wire transfer, mail or other means;
(7) if applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase the Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) [Reserved];
-14-
(10) if other than denominations of $2,000 and any integral multiples of $1,000 in excess
thereof, the denominations in which the Securities of the series shall be issuable;
(11) the forms of the Securities of the series in bearer or fully registered form (and, if in
fully registered form, whether the Securities will be issuable as Global Securities);
(12) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(13) the currency of denomination of the Securities of the series, which may be U.S. Dollars or
any other currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
(14) the designation of the currency, currencies or currency units in which payment of the
principal of and interest, if any, on the Securities of the series will be made;
(15) if payments of principal of or interest, if any, on the Securities of the series are to
be made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;
(16) the manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
(17) the provisions, if any, relating to any security or guarantee provided for the
Securities of the series, and any subordination in right of payment, if any, of the Securities of the series;
(18) any addition to or change in or deletion of any of the covenants set forth in Articles
4 or 5 which applies to Securities of the series;
(19) any addition to or change in the Events of Default which applies to any Securities of
the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(20) any addition to or change in or deletion of any of the provisions and terms set forth in
the definition of “Senior Indebtedness,” or to Articles 7, 9, 12 and 13 which applies to Securities of the series;
(21) any other terms of the Securities of the series (which may modify or delete any provision
of this Indenture insofar as it applies to such series and/or add additional provisions); and
-15-
(22) any depositories, interest rate calculation agents, exchange rate calculation agents or
other agents with respect to Securities of such series if other than those appointed herein.
(c) All Securities of any one series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to the Supplemental Indenture pursuant to which such series is created, and the authorized principal amount of any series may be increased to provide for issuances of
additional Securities of such series, unless otherwise provided in such Supplemental Indenture.
(d) Global Securities will be in the form specified in the Supplemental Indenture pursuant to which such series
of Securities is created. Each Global Security shall represent such of the outstanding Securities of a series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Securities of such
series from time to time as reflected in the records of the Trustee and that the aggregate principal amount of outstanding Securities of such series represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. The Trustee’s records shall be noted to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Securities of such series represented thereby, in accordance with instructions
given by the Holder thereof.
(e) The Securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article
12 and/or as specified as contemplated pursuant to this Section 2.01.
| Section 2.02 |
Execution and Authentication.
|
(a) At least one Officer must sign the Securities for the Company by manual, electronic, facsimile or .pdf
signature.
(b) If an Officer whose signature is on a Security no longer holds that office at the time a Security is
authenticated, the Security will nevertheless be valid.
(c) A Security will not be valid until authenticated by the manual signature of the Trustee. The signature will
be conclusive evidence that the Security has been authenticated under this Indenture. A Security shall be dated the date of its authentication.
(d) The Trustee shall, upon receipt of a Company Order, authenticate Securities for original issue under this
Indenture. The aggregate principal amount of Securities outstanding at any time may not exceed the aggregate principal amount of Securities authorized for issuance by the Company pursuant to one or more Company Orders. The Trustee shall not be
required to authenticate such Securities if the issue thereof will adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be required to authenticate Securities denominated in any currency other than U.S. dollars if the Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
-16-
(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to
deal with Holders, the Company or an Affiliate of the Company.
| Section 2.03 |
Registrar and Paying Agent.
|
(a) The Company will maintain a Registrar and a Paying Agent with respect to each series of Securities issued
pursuant to this Indenture. The Registrar will keep a register of the Holders and the Securities and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional Paying Agents and may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. The Company or any of the Company’s Subsidiaries may act as Paying Agent or
Registrar.
(b) The Company initially appoints DTC to act as Depository with respect to each series of Securities unless
another Depository is appointed prior to the time Securities of the applicable series are first issued.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to each
series of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time Securities of such series are first issued.
| Section 2.04 |
Paying Agent to Hold Money in Trust.
|
The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent (a) will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal, premium or interest on the Securities and (b) will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary of the Company) will have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders of any series of
Securities all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for each series of Securities.
| Section 2.05 |
Holder Lists.
|
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise
comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders and the Company shall otherwise comply with TIA § 312(a).
-17-
| Section 2.06 |
Transfer and Exchange.
|
(a) Transfer and Exchange of Global Securities and Definitive Securities.
A Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or to another nominee of the Depository, or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. The Company shall exchange Global Securities for Definitive Securities of the same series if at any time:
(1) the Company delivers to the Trustee notice from the Depository that it is unwilling or
unable to continue to act as Depository or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depository is not appointed by the Company within 90 days after the date of such notice from the
Depository;
(2) the Company in its sole discretion determines that the Global Securities of a given
series (in whole but not in part) should be exchanged for Definitive Securities of the same series and delivers an Officer’s Certificate to such effect to the Trustee; or
(3) upon the written request of a Holder if a Default or Event of Default shall have
occurred and be continuing with respect to the Securities of such series.
Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Securities shall be issued in such names and in any approved denominations as the
Depository shall instruct the Trustee. Global Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 2.09 and 2.12 hereof. Every Security authenticated and delivered in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to this Section 2.06 or Sections 2.09 or 2.12 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Security. Definitive Securities and beneficial interests in a Global
Security may each be transferred and exchanged as provided in the Supplemental Indenture pursuant to which such applicable series of Securities is created.
(b) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Securities and Definitive Securities upon receipt of a Company Order in accordance with Section 2.02 hereof or at the Registrar’s request.
(2) No service charge shall be made to a Holder of a Global Security or to a Holder of a
Definitive Security for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.12, 3.06 and 9.04 hereof).
-18-
(3) The Registrar shall not be required to register the transfer of or exchange any Security
selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(4) All Global Securities and Definitive Securities issued upon any registration of transfer
or exchange of Global Securities or Definitive Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Securities or Definitive Securities
surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company shall be required:
(A) to issue, to register the transfer of or to exchange any Securities during a period
beginning at the opening of business 15 days before the day of any selection of Securities for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Security selected for redemption in whole
or in part, except the unredeemed portion of any Security being redeemed in part; or
(C) to register the transfer of or to exchange a Security between a record date and the next
succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer of any Security, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee shall authenticate Global Securities and Definitive Securities in accordance
with the provisions of Section 2.02 hereof.
(8) All orders, certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
(9) Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar
shall be responsible for ascertaining whether any transfer or exchange complies with the registration provisions of or exemptions from the Securities Act or applicable state securities laws.
-19-
(c) Legends. Securities of a series will bear the legends provided for
in the Supplemental Indenture pursuant to which such series of Securities is created.
| Section 2.07 |
[Reserved].
|
| Section 2.08 |
[Reserved].
|
| Section 2.09 |
Replacement Securities.
|
(a) If any mutilated Security is surrendered to the Trustee or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Security, the Company will issue and the Trustee, upon receipt of a Company Order, will authenticate a replacement Security of the same series if the Trustee’s requirements are met. An
indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Security is
replaced. The Company may charge for its expenses in replacing a Security.
(b) Every replacement Security is an additional obligation of the Company and will be entitled to all of the
benefits of this Indenture equally and proportionately with all other Securities of such series duly issued hereunder.
| Section 2.10 |
Outstanding Securities.
|
(a) The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof or any applicable Supplemental Indenture, and those described in this
Section 2.10 as not outstanding. Except as set forth in Section 2.11 hereof, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security; however, Securities held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 9.02(a) hereof.
(b) If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
(c) If the principal amount of any Security is considered paid under Section 4.01 hereof, it ceases to be
outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities will be deemed to be no longer outstanding and will cease to accrue interest.
-20-
| Section 2.11 |
Treasury Securities.
|
In determining whether the Holders of the required principal amount of Securities of a given series have concurred in any direction, waiver or consent, Securities of such
series owned by the Company or the Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or the Guarantor, will be considered as though not outstanding, except
that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.
| Section 2.12 |
Temporary Securities.
|
(a) Until certificates representing Securities are ready for delivery, the Company may prepare and the Trustee,
upon receipt of a Company Order, will authenticate temporary Securities. Temporary Securities will be substantially in the form of certificated Securities but may have variations that the Company considers appropriate for temporary Securities and
as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate Definitive Securities of the same series in exchange for temporary Securities.
(b) Holders of temporary Securities will be entitled to all of the benefits of this Indenture as the definitive
Securities of the same series.
| Section 2.13 |
Cancellation.
|
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. Upon receipt of a Company Order, the Trustee and no one else will cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of
such canceled Securities in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the disposition of all canceled Securities will be delivered to the Company at the Company’s written request. The
Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation.
| Section 2.14 |
Defaulted Interest.
|
If the Company defaults in a payment of interest on the Securities of any series, the Company will pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Holders on the applicable record date, in each case at the rate provided in the Securities of such series and in Section 4.01 hereof. The Company will notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Security of such series, the date of the special record date, if applicable, and the date of the proposed payment. The Company will fix or cause to be fixed each such payment date and, if
such payment date is beyond the applicable grace period, a special record date; provided, that no such special record date may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will send or cause to be sent to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.
-21-
ARTICLE 3
REDEMPTION AND PREPAYMENT
For purposes of this Indenture, this Article 3 provides the terms upon which redemption and prepayment may occur. For purposes of any series of Securities issued under
a Supplemental Indenture, the Supplemental Indenture in respect of such series of Securities will specify the terms upon which redemption and prepayment may occur, which may include some, all or none of the terms contained in this Article 3.
| Section 3.01 |
Notices to Trustee.
|
The Company may, with respect to any series of Securities, reserve the right to redeem and pay the series of Securities or may covenant to redeem and pay the series of
Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a series of Securities is redeemable and the Company elects or is obligated to redeem such series of
Securities pursuant to the provisions of such Securities, it must furnish to the Trustee, at least 10 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:
(1) the clause of the Supplemental Indenture for such series pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of the series of such Securities to be redeemed;
(4) the redemption price, if then determinable or, if not, the method for determination; and
(5) the applicable CUSIP numbers, if any.
| Section 3.02 |
Selection of Securities to Be Redeemed.
|
If less than all of the Securities of a series is to be redeemed at any time, the Trustee (or the Registrar if other than the Trustee) shall select the Securities of a series
for redemption on a pro rata basis to the extent practicable or by lot or such other similar method in accordance with the procedures of the Depository, unless otherwise required by law or applicable stock
exchange requirements (so long as the Trustee has actual knowledge of such listing).
In the event of partial redemption by lot, the particular Securities of the series to be redeemed shall be selected, unless otherwise provided herein, not less than 10 nor more
than 60 days prior to the redemption by the Trustee from the outstanding Securities of such series not previously called for redemption.
-22-
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed. The Securities and portions of the Securities selected shall be in minimum amounts of $2,000 or whole multiples of $1,000 in excess of $2,000; except that if all of the Securities of a Holder of any series
are to be redeemed, the entire outstanding amount of the Securities of such series held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to a
series of the Securities called for redemption also apply to portions of the Securities called for redemption.
No Securities of a series of $2,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first-class mail or sent electronically at least 10 but not more
than 60 days before the redemption date to each Holder to be redeemed, except that redemption notices may be mailed or sent electronically more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the
Securities of a series or a satisfaction and discharge of this Indenture.
If any Security of a series is to be redeemed in part only, the notice of redemption that relates to that Security shall state the portion of the principal amount of that
Security that is to be redeemed. In the case of certificated Securities, a new Security of such series in principal amount equal to the unredeemed portion of the original Security shall be issued in the name of the Holder upon cancellation of the
original Security. Securities of a series called for redemption become due on the date fixed for redemption, subject to the satisfaction or waiver of any conditions. On and after the redemption date, interest ceases to accrue on Securities of a
series or portions of them called for redemption unless the Company defaults in making the applicable redemption payment.
| Section 3.03 |
Notice of Redemption.
|
At least 10 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first-class mail or sent electronically, a notice of
redemption to each Holder whose Securities are to be redeemed at its registered address, except that redemption notices may be mailed or delivered electronically more than 60 days prior to a redemption date if the notice is issued in connection
with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Article 8 or Article 11 hereof.
The notice will identify the Securities of the series to be redeemed and will state:
(1) the redemption date;
(2) the redemption price if then determinable or, if not, the method for determination;
-23-
(3) if any Security of such series is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and that, after the redemption date upon surrender of such Security, in the case of certificated Securities, a new Security or Securities in principal amount equal to the unredeemed portion will be issued in
the name of the Holder upon cancellation of the original Security;
(4) the name and address of the Paying Agent;
(5) that the Securities of such series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption payment, interest on the
Securities of such series called for redemption ceases to accrue on and after the redemption date;
(7) the applicable section of this Indenture, the Supplemental Indenture for the applicable
series or the Securities pursuant to which the Securities of such series called for redemption are being redeemed;
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Securities; and
(9) if such redemption is subject to the satisfaction of one or more conditions precedent,
such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), such redemption may not occur and
such notice may be rescinded in the event that any or all of such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the Trustee, at least 1 Business Day prior to the requested date of delivery of the notice of redemption (or such shorter period as the Trustee in its sole discretion
may allow), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Any redemption and notice thereof may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent.
| Section 3.04 |
Effect of Notice of Redemption.
|
Once notice of redemption is mailed or delivered electronically in accordance with Section 3.03 hereof, the Securities of the series called for redemption become,
subject to any conditions precedent set forth in the notice of redemption, irrevocably due and payable on the redemption date at the redemption price.
-24-
| Section 3.05 |
Deposit of Redemption Price.
|
By 10:00 a.m., Eastern Time, on the redemption date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of,
accrued interest to but excluding the redemption date and premium, if any, on all Securities to be redeemed on that date. Promptly after the Company’s written request, the Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, accrued interest and premium, if any, on, all Securities to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Securities or the portions of
Securities called for redemption.
If a Security is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Security was registered at the close of business on such record date. If any Security called for redemption is not so paid upon surrender for redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Securities and in
Section 4.01 hereof.
| Section 3.06 |
Securities Redeemed in Part.
|
Upon surrender of a Security that is redeemed in part, the Company shall issue and, upon receipt of a Company Order, the Trustee shall authenticate for the Holder at the
expense of the Company a new Security equal in principal amount to the unredeemed portion of the Security surrendered.
| Section 3.07 |
Calculation of Redemption Price.
|
The Trustee shall have no obligation to calculate the redemption price of any Security.
ARTICLE 4
COVENANTS
For purposes of this Indenture, this Article 4 provides the terms of the various covenants to which Securities are subject. However, the Supplemental Indenture in
respect of the Securities of a series will specify the terms of the covenants to which the Securities of such series are subject, which may include some, all or none of the covenants contained in this Article 4.
-25-
| Section 4.01 |
Payment of Securities.
|
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities of each series on the dates and in the manner provided in this
Indenture and the Securities of such series. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
| Section 4.02 |
Maintenance of Office or Agency.
|
(a) The Company shall maintain an office or agency (which may be an office of the Trustee or an Affiliate of the
Trustee or Registrar) where Securities may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall 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 at the Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other offices or agencies where the Securities
of a series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall 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.
(c) With respect to each series of Securities, the Company hereby designates the Corporate Trust Office of the
Trustee for such Securities as one such office or agency of the Company in accordance with Section 2.03 hereof; provided, however, the Trustee shall not
be deemed an agent of the Company for the service of legal process.
| Section 4.03 |
Reports.
|
(a) Whether or not required by the SEC’s rules and regulations, so long as any Securities of a series are
outstanding, the Company shall furnish to the Trustee and Holders of such series of Securities, within the time periods (including any extensions thereof) specified in the SEC’s rules and regulations:
(1) all quarterly and annual reports of the Company that would be required to be filed with
the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and
(2) all current reports of the Company that would be required to be filed with the SEC on
Form 8-K if the Company were required to file such reports.
-26-
All such reports shall be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K
shall include a report on the Company’s consolidated financial statements by the Company’s independent registered public accounting firm. In addition, the Company shall file a copy of each of the reports referred to in clauses (1) and (2) above
with the SEC for public availability within the time periods specified in the rules and regulations applicable to such reports (unless the SEC will not accept such a filing). To the extent such filings are made with the SEC, the reports shall be
deemed to have been furnished to the Trustee and Holders. To the extent such filings are not made with the SEC, the reports shall be deemed to have been furnished to the Trustee and Holders if the Company (i) delivers such reports to the Trustee
and (ii) posts copies of such reports on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access shall be given to Holders and prospective purchasers of the Securities, in each case at the Company’s
expense and by the applicable date the Company would be required to file such information pursuant to the preceding paragraph.
(b) In addition, the Company agrees that, for so long as any Securities of a series remain outstanding, if at
any time the Company is not required to file the reports required by the preceding paragraphs with the SEC, it will furnish to the Holders of such series of Securities and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing, the foregoing obligations may be satisfied with respect to financial and
other information of the Company by furnishing (including by filing with the SEC) (i) the applicable financial statements of the Guarantor (or any other direct or indirect parent of the Company) or (ii) the Guarantor’s (or any other direct or
indirect parent of the Company, as applicable) Form 8-K, 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to Section 4.03(a), to the extent such information relates to
the Guarantor (or any other direct or indirect parent of the Company), such information is accompanied by consolidating or other information that explains in reasonable detail the differences between the information relating to the Guarantor or
such other parent, on the one hand, and the information relating to the Company on a standalone basis, on the other hand (provided, however, that the Company shall
be under no obligation to deliver such consolidating or other explanatory information if the Total Assets and the Consolidated EBITDA of the Company and its consolidated Restricted Subsidiaries do not differ from the Total Assets and the
Consolidated EBITDA, respectively, of the Guarantor (or any other direct or indirect parent of the Company) and its consolidated Subsidiaries by more than 5.0%).
(d) The Trustee shall have no duty to review or analyze reports delivered to it. Delivery of such reports,
information and documents, if any, to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from
information contained therein, including the Company’s or the Guarantor’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely on an Officer’s Certificate).
(e) To the extent any information is not filed or provided within the time periods specified in this Section
4.03 and such information is subsequently filed or provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured.
-27-
| Section 4.04 |
Compliance Certificate.
|
(a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officer’s
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on a series of Securities is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Securities are outstanding, the Company shall deliver to the Trustee with respect to
such series of Securities, promptly upon the Company becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect
thereto.
ARTICLE 5
SUCCESSORS
For purposes of this Indenture, this Article 5 provides the terms upon which a Person can succeed the Obligations of the Company. For purposes of any Securities issued
under this Indenture, the Supplemental Indenture in respect of such series of Securities will specify the terms upon which a Person can succeed the Obligations of the Company or the Guarantor, if any, to such series of Securities, which may include
some, all or none of the terms contained in this Article 5.
| Section 5.01 |
Merger, Consolidation or Sale of Assets.
|
(a) The Company and the Guarantor may not: (i) consolidate or merge with or into another Person (whether or not
the Company or the Guarantor is the surviving corporation); or (ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries or the Guarantor and its
Subsidiaries, taken as a whole, as the case may be, in one or more related transactions, to another Person; unless:
(1) either:
(A) the Company or the Guarantor, as the case may be, is the surviving entity; or
-28-
(B) the Person formed by or surviving any such consolidation or merger (if other than the
Company or the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any
state thereof or the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company (if other than the Company or the Guarantor) assumes all the
Obligations of the Company or the Guarantor, as the case may be, under this Indenture and the Securities pursuant to a Supplemental Indenture; and
(3) immediately after such transaction, no Event of Default exists.
(b) This Section 5.01 will not apply to:
(1) a merger, amalgamation or consolidation solely for the purpose of reincorporating or
reorganizing the Company or the Guarantor in another jurisdiction or forming a direct or indirect holding company of the Company or the Guarantor; and
(2) any sale, transfer, assignment, conveyance, lease or other disposition of assets between
or among the Company, the Guarantor and their respective Subsidiaries, including by way of merger or consolidation.
| Section 5.02 |
Successor Company Substituted.
|
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its
Subsidiaries or the Guarantor and its Subsidiaries, taken as a whole, as the case may be, in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the Successor Company shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger, sale, lease, assignment, transfer, conveyance or other disposition, the provisions of this Indenture referring to the “Company” or the “Guarantor” shall refer instead
to the Successor Company and not to the Company or the Guarantor, as the case may be), and may exercise every right and power of the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if the Successor Company
had been named as the Company or the Guarantor, as the case may be, herein; provided, however, that the predecessor Company shall not be relieved from the obligation
to pay the principal of, interest, premium (if any) on the Securities except in the case of a sale of all of the Company’s or the Guarantor’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01
hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
For purposes of this Indenture, this Article 6 provides the terms governing defaults and remedies. For purposes of any series of Securities issued under this Indenture,
the Supplemental Indenture in respect of such series of Securities will specify the terms of defaults and remedies for such series of Securities, which may include some, all or none of the terms contained in this Article 6.
-29-
| Section 6.01 |
Events of Default.
|
Each of the following is an “Event of Default” with respect to the Securities of a series:
(a) default for 30 days in the payment when due of interest on such series of the Securities;
(b) default in payment when due of the principal of, or premium, if any, on such series of the Securities;
(c) failure by the Company or the Guarantor of such Securities to comply with any covenant in this Indenture (other than a default specified in
clause (a) or (b) above) for 90 days after written notice by the Trustee or Holders of at least 30% in principal amount of the applicable series of Securities then outstanding; provided, that this clause
(c) shall not apply to any such failure being contested in good faith by the Company or the Guarantor;
(d) [Reserved];
(e) except as permitted by this Indenture, the Guarantee of the Guarantor shall be held in any final and non-appealable judicial proceeding to be
unenforceable or invalid or shall cease for any reason (other than in accordance with its terms) to be in full force and effect or the Guarantor, or any Person acting on behalf of the Guarantor, shall deny or disaffirm in writing its or their
obligations under its Guarantee of the Securities of such series; and
(f) (i) a court of competent jurisdiction (A) enters an order or decree under any Bankruptcy Law that is for relief against the Company or the
Guarantor in an involuntary case; (B) appoints a custodian for all or substantially all of the property of the Company or the Guarantor; or (C) orders the liquidation of the Company or the Guarantor and, in each of clauses (A), (B) or (C), the
order, appointment or decree remains unstayed and in effect for at least 60 consecutive days; or (ii) the Company or the Guarantor pursuant to or within the meaning of Bankruptcy Law (A) commences a voluntary case; (B) consents to the entry of an
order for relief against it in an involuntary case; (C) consents to the appointment of a custodian of it or for all or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors.
-30-
| Section 6.02 |
Acceleration.
|
In the case of an Event of Default with respect to Securities of any series pursuant to Section 6.01(f), principal of and accrued and unpaid interest on all the
Securities of such series that are outstanding will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing (other than an Event of Default pursuant to Section 6.01(c)),
the Trustee or the Holders of at least 30% in principal amount of such series of Securities that are outstanding may declare the principal of and accrued and unpaid interest on all the Securities of such series to be due and payable immediately.
| Section 6.03 |
Waiver of Past Defaults.
|
Holders of not less than a majority in aggregate principal amount of the applicable series of Securities that are then outstanding, by notice to the Trustee may, on behalf of
the Holders, waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of interest on or principal of, such series of Securities (including in connection with an
offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding applicable series of Securities by notice
to the Trustee may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. 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 6.04 |
Control by Majority.
|
Holders of a majority in principal amount of the applicable series of Securities that are then outstanding may direct the time, method and place of conducting a proceeding for
exercising any remedy available to the Trustee in its exercise of any trust or power in respect of such series of Securities. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or the applicable series
of Securities or, subject to Section 7.01 and Section 7.02, that the Trustee determines is unduly prejudicial to the rights of other Holders of such series of Securities or would involve the Trustee in personal liability (provided, that the Trustee shall not have an affirmative duty to determine whether any such direction is unduly prejudicial to any other Holder); provided, however, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may withhold from Holders of any series of Securities notice of any continuing Default or Event of Default if it determines that
withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal or interest.
| Section 6.05 |
Limitation on Suits.
|
In case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or
direction of any Holders of a series of Securities unless such Holders have offered to the Trustee indemnity and/or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder of a Security may pursue any remedy with respect to this Indenture unless:
-31-
(1) such Holder has previously given the Trustee written notice that an Event of Default is
continuing;
(2) Holders of at least 30% in aggregate principal amount of a series of the Securities that are
then outstanding have made a written request to the Trustee to pursue the remedy;
(3) such Holders have offered and, if requested, provided the Trustee reasonable security
and/or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof
and the offer of security and/or indemnity; and
(5) Holders of a majority in aggregate principal amount of such series of the Securities that
are then outstanding have not given the Trustee a direction inconsistent with such request within such 60-day period.
| Section 6.06 |
Collection Suit by Trustee.
|
If an Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company or the Guarantor for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Securities of a series and interest on overdue principal and, to the extent lawful,
interest and 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. The Trustee may maintain a
proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.
| Section 6.07 |
Priorities.
|
If the Trustee collects any money pursuant to this Article 6, it shall, subject to Article 12 other than with respect to amounts owed to the Trustee under Section
7.06, pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under the Note Documents, including, without limitation, Section 7.06 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Securities for amounts due and
unpaid on the Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
-32-
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.07.
| Section 6.08 |
Trustee May File Proofs of Claim.
|
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company or the Guarantor or their respective creditors or properties and, unless
prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy
or other Person performing similar functions, and any custodian or other party making payment in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.06 hereof. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
| Section 6.09 |
Securityholder Directions.
|
(a) Any notice of Default, notice of acceleration or instruction to a Responsible Officer of the Trustee to
provide a notice of Default, notice of acceleration or take any other action (a “Securityholder Direction”) provided by any one or more Holders (each, a “Directing Holder”)
must be accompanied by a written representation from each such Holder to the Company and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by Beneficial Owners that
are not) Net Short (a “Position Representation”), which representation, in the case of a Securityholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting
Event of Default is cured or otherwise ceases to exist or the Securities are accelerated. In addition, each Directing Holder must, at the time of providing a Securityholder Direction, covenant to provide the Company with such other information as
the Company may reasonably request from time to time in order to verify the accuracy of such Directing Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”).
Notwithstanding anything to the contrary, in any case in which the Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the Beneficial Owner of the Securities in lieu of DTC or
its nominee, and DTC shall be entitled to rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee, and such beneficial owner shall provide proof of its holdings in a manner satisfactory to the
Trustee.
-33-
(b) If, following the delivery of a Securityholder Direction, but prior to acceleration of the Securities, the
Company determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an officer’s certificate stating that the Company has
initiated litigation (“Litigation”) in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to
invalidate any Event of Default that resulted from the applicable Securityholder Direction, the cure period with respect to such Event of Default shall be automatically stayed and the cure period with respect to such Event of Default shall be
automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter (a “Final Decision”). Once such officer’s certificate
has been provided to the Trustee, the Trustee shall take no further action pursuant to the related Securityholder Direction until it has actual knowledge of a Final Decision. If, following the delivery of a Securityholder Direction, but prior to
acceleration of the Securities, the Company provides to the Trustee an officer’s certificate stating that a Directing Holder failed to satisfy its Verification Covenant (a “Verification Covenant Officer’s
Certificate”), the cure period with respect to such Event of Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Securityholder Direction shall be automatically
reinstituted and any remedy stayed until such time as the Company provides the Trustee with an officer’s certificate that the Verification Covenant has been satisfied (a “Covenant Satisfaction Officer’s
Certificate”); provided that the Company shall promptly deliver such officer’s certificate to the Trustee upon becoming aware that the Verification Covenant has been satisfied. Any breach of the
Position Representation (as evidenced by the delivery to the Trustee of the officer’s certificate stating that a Directing Holder failed to satisfy its Verification Covenant) shall result in such Holder’s participation in such Securityholder
Direction being disregarded; and if, without the participation of such Holder, the percentage of Securities held by the remaining Holders that provided such Securityholder Direction would have been insufficient to validly provide such
Securityholder Direction, such Securityholder Direction shall be void ab initio, with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee
shall be deemed not to have received such Securityholder Direction or any notice of such Default or Event of Default.
(c) Notwithstanding anything in Section 6.09(a) or Section 6.09(b) to the contrary, (i) any
Securityholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of a bankruptcy or similar direction shall not require compliance with the foregoing paragraphs and (ii) a notice of Default may not be
given with respect to any action taken, and reported publicly or to Holders, more than two years prior to such notice of Default. For the avoidance of doubt, the Trustee shall have no duty to inquire as to or investigate the accuracy of any
Position Representation, enforce compliance with any Verification Covenant or verify any statements in any officer’s certificates delivered to it or otherwise make calculations with respect to Derivative Instruments, Net Shorts, Long Derivative
Instruments, Short Derivative Instruments or otherwise. The Trustee shall have no obligation to monitor or determine whether a Holder is Net Short and can rely conclusively on a Directing Holder’s Position Representation, the officer’s
certificates delivered by the Company and determinations made by a court of competent jurisdiction and shall have no liability for ceasing to take any action, staying any remedy or otherwise failing to act in accordance with a Securityholder
Direction during the pendency of Litigation or a Securityholder Direction after a Verification Covenant Officer’s Certificate has been provided but prior to receipt of a Covenant Satisfaction Officer’s Certificate. The Trustee shall have no
liability or responsibility to the Company or to any Holder or any other Person in connection with any Securityholder Direction or to determine whether or not any Holder has delivered a Position Representation or that such Position Representation
conforms with this Indenture or any other agreement.
-34-
| Section 6.10 |
Rights of Holders to Receive Payment.
|
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal of, and interest on, the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
| Section 6.11 |
Undertaking for Costs.
|
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in
its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, 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. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.10
hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Securities.
ARTICLE 7
TRUSTEE
| Section 7.01 |
Duties of Trustee.
|
(a) If an Event of Default with respect to any series of Securities as to which it is Trustee has occurred and
is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this
Indenture and only with respect to series of Securities as to which it is Trustee and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, the Trustee shall not be liable except for the
performance of such duties, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions
specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
-35-
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(1) this Section 7.01(c) does not limit the effect of Section 7.01(b);
(2) the Trustee will not be liable for any error of judgment made in good faith by it or any
of its officers, employees or agents, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee will not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 6.04 hereof, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture will require the Trustee to expend or risk its own funds
or incur any liability or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not assured to it.
(d) The Trustee will not be liable for interest on or the investment of any money received by it except as the
Trustee 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.
(e) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to
the Trustee is subject to this Section 7.01.
| Section 7.02 |
Rights of Trustee.
|
(a) The Trustee may conclusively rely and shall be fully 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, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein.
(b) Before the Trustee acts or refrains from acting, it may (at the expense of the Company) require an
Officer’s Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel or
other professionals of its own selection and the advice of such counsel or other professionals or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
-36-
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct,
negligence, acts or failure to act of any attorney or agent appointed with due care.
(d) The Trustee will not be liable for any action it takes, suffers or omits to take in good faith that it
believes to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the
Company or the Guarantor, as applicable, will be sufficient if signed by an Officer of the Company or the Guarantor, as applicable.
(f) 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 indemnity and/or security satisfactory to the Trustee against the losses, liabilities, costs and expenses that might be incurred by the
Trustee in compliance with such request or direction.
(g) In no event shall the Trustee be responsible or liable for special, indirect, punitive, incidental 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.
(h) The Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities of a particular series and this Indenture.
(i) 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 as Registrar and Paying Agent, and each Agent, Custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Company and each Guarantor deliver an Officer’s Certificate setting forth
the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any
Person specified as so authorized in any such certificate previously delivered and not superseded.
(k) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any
failure or delay in the performance of its obligations under this Indenture arising out of or caused directly or indirectly because of circumstances beyond its control, including, but not limited to, nuclear or natural catastrophes or acts of
God, flood, earthquake, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, civil or military disturbances, sabotage, accidents, labor disputes, embargo, pandemics or epidemics, government
action, including any laws, ordinances, regulations or the like, inability to obtain material, equipment, or communications or computer (software and hardware) facilities, or the failure of equipment or interruption of utilities, communications
or computer (software and hardware) facilities or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, and other causes beyond its control whether or not of the same class or kind as specifically
named above.
-37-
(l) The Trustee shall not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(m) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and
duties hereunder.
(n) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a
duty and, with respect to such permissive rights, the Trustee shall not be answerable for other than its negligence or willful misconduct.
| Section 7.03 |
Individual Rights of Trustee.
|
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with either the Company or the Guarantor or any
Affiliate of the Company or the Guarantor with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as defined in the TIA) after a Default has occurred and is continuing, it
must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties.
| Section 7.04 |
Trustee’s Disclaimer.
|
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of any offering materials, the Note Documents, the Securities or the
Guarantee; it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee; and it will not be responsible for any statement or recital herein or any statement in the Securities, the Guarantee or any other document in connection with the sale of
the Securities or pursuant to this Indenture other than its certificate of authentication.
| Section 7.05 |
Notice of Defaults.
|
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee or a notice of such Default or Event of Default is delivered to a Responsible
Officer of the Trustee, the Trustee will mail or send electronically to Holders of the applicable series of Securities a notice of the Default or Event of Default within 90 days after the earlier of the date the Default or Event of Default becomes
known to a Responsible Officer of the Trustee or the date a Responsible Officer of the Trustee receives notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Security,
the Trustee may and shall be protected in withholding the notice if and so long as it in good faith determines that withholding the notice is in the interests of the Holders of the applicable series of Securities.
-38-
| Section 7.06 |
Compensation and Indemnity.
|
(a) The Company and the Guarantor, jointly and severally, shall pay to the Trustee from time to time reasonable
compensation, as agreed in writing from time to time, for its acceptance and administration of this Indenture and services hereunder. The Trustee’s compensation will not be limited by any law on compensation of a Trustee of an express trust. The
Company and the Guarantor, jointly and severally, shall reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.
Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b) The Company and the Guarantor, jointly and severally, will indemnify the Trustee and hold it harmless from
and against any and all losses, liabilities, claims, damages, costs or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights under this Indenture, each
Supplemental Indenture and the Guarantee and with respect to each series of Securities, including the reasonable and documented costs and expenses of enforcing this Indenture, each Supplemental Indenture and the Guarantee against the Company and
the Guarantor (including this Section 7.06(b)) and defending itself against any claim (whether asserted by the Company, the Guarantor, any Holder or any other Person) or liability in connection with the exercise or performance of any of
its powers or duties under this Indenture and each Supplemental Indenture, except to the extent any such loss, liability or expense may be attributable to its own gross negligence or willful misconduct. The Trustee will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or the Guarantor of their obligations hereunder. The Company or any such Guarantor shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. Neither the Company nor the Guarantor need pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(c) When the Trustee incurs expenses or renders services after an Event of Default specified in clause (f) of Section
6.01 hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
(d) The Company’s and Guarantor’s obligations under this Section 7.06 shall survive the resignation or
removal of the Trustee, the satisfaction and discharge of this Indenture with respect to any series of Securities, the complete satisfaction and discharge of this Indenture, any termination of this Indenture or any Supplemental Indenture,
including any termination or rejection of this Indenture or any Supplemental Indenture in any insolvency or similar proceeding, and the repayment of all the Securities.
-39-
(e) To secure the payment obligations of the Company and the Guarantor under this Section 7.06, the
Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee’s respective right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or Indebtedness of the Company.
| Section 7.07 |
Replacement of Trustee.
|
(a) 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 7.07.
(b) The Trustee may resign at any time, with respect to the Securities of one or more series, and be discharged
from the trust hereby created by so notifying the Company in writing. The Holders of a majority in aggregate principal amount of the then outstanding Securities of any series may remove the Trustee with respect to that series by so notifying the
Trustee and the Company in writing not less than 30 days prior to the effective date of such removal. The Company may remove the Trustee with respect to the Securities of one or more series if:
(1) the Trustee fails to comply with Section 7.09 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee with respect to
Securities of any one or more series for any reason, the Company will promptly appoint a successor Trustee with respect to such series. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the then outstanding Securities of such series may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
(d) If a successor Trustee with respect to the Securities of any one or more series does not take office within
30 days after the retiring Trustee resigns or is removed, the retiring or removed Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Securities of the applicable series may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to
comply with Section 7.09 hereof, such Holder may petition at the expense of the Company any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
-40-
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee with respect to each series of Securities for which it is acting as
Trustee under this Indenture. The successor Trustee will mail or deliver electronically a notice of its succession to Holders of each such series. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor
Trustee.
(g) The retiring Trustee shall have no responsibility or liability for any action or inaction of a successor
Trustee.
| Section 7.08 |
Successor Trustee by Merger, etc.
|
Subject to Section 7.09 hereof, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including
this transaction) to, another corporation, the successor corporation without any further act will be the successor Trustee.
| Section 7.09 |
Eligibility; Disqualification.
|
(a) There will at all times be a Trustee hereunder that is a corporation organized and doing business under the
laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and
surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
(b) This Indenture shall always have a Trustee who satisfied the requirements of TIA § 310(a)(1), (2) and (5). The
Trustee is subject to TIA § 310(b).
| Section 7.10 |
Reports by Trustee to Holders.
|
(a) Within 60 days after each May 15 beginning with May 15, 2027, and for so long as Securities remain
outstanding, the Trustee shall send to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee shall also comply with TIA § 313(b)(2) and send all reports as required by TIA § 313(c).
(b) A copy of each report at the time of its delivery to the Holders of Securities will be mailed or delivered
by the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which the Securities are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee when the Securities are listed on any
stock exchange.
| Section 7.11 |
Preferential Collection of Claims Against the Issuer.
|
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated therein.
-41-
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
For purposes of this Indenture, this Article 8 provides the terms upon which legal defeasance and covenant defeasance can occur. For purposes of any series of
Securities issued under this Indenture, the Supplemental Indenture in respect of such series of Securities will specify the terms upon which legal defeasance and covenant defeasance can occur for such series of Securities, which may include some,
all or none of the terms contained in this Article 8.
| Section 8.01 |
Option to Effect Legal Defeasance or Covenant Defeasance.
|
The Company may, at its option evidenced by a resolution of its Board of Directors set forth in an Officer’s Certificate, at any time, elect to have either Section 8.02
or Section 8.03 hereof be applied to a series of Securities upon compliance with the conditions set forth below in this Article 8.
| Section 8.02 |
Legal Defeasance and Discharge.
|
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and the Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to a series of Securities (including the Guarantee) on the date the conditions set forth in Section
8.04 hereof are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire
Indebtedness represented by such series of Securities (including the Guarantee with respect to such series of Securities), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other
Sections hereof referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under the applicable Note Documents (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Securities that are then outstanding to receive payments
in respect of the principal of, or interest or premium on, such Securities when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Company’s obligations with respect to such Securities under Article 2 and Section
4.02 hereof;
(3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder,
and the Company’s and the Guarantor’s Obligations in connection therewith; and
(4) this Article 8.
-42-
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
| Section 8.03 |
Covenant Defeasance.
|
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and the Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of its or their obligations under the covenants specified in a Supplemental Indenture with respect to Securities of the applicable series on and after
the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and such series of Securities will thereafter be deemed not “outstanding” for the purposes
of any direction, waiver, consent or declaration or act of the Holders of such series of Securities (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such series of Securities will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to such series of Securities and the Guarantee with respect to
such series of Securities, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other Note Document and such omission to comply will not constitute a Default or an Event of Default under Section
6.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities and Guarantee shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, subject to the satisfaction of the conditions set forth in Sections 8.04, 6.01(c) and 6.01(e) hereof shall not constitute Events of Default.
| Section 8.04 |
Conditions to Legal or Covenant Defeasance.
|
(a) In order to exercise either Legal Defeasance or Covenant Defeasance with respect to a series of Securities
under either Section 8.02 or Section 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee for such series, in trust, for the
benefit of the Holders of such series of Securities, cash in U.S. dollars, non-callable Government Securities or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient to pay the principal
of, or interest and premium on, such Securities that are then outstanding on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether such Securities are being defeased to maturity or to a
particular redemption date;
(2) in the case of Legal Defeasance, the Company has delivered to the Trustee for such
Securities an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or
(b) since the applicable Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders and the beneficial owners of such
series of Securities that are then outstanding will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not occurred;
-43-
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for
such Securities an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders and the beneficial owners of such series of Securities that are then outstanding will not
recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no Default or Event of Default with respect to such series of Securities has occurred
and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation
of, or constitute a default under any material agreement or instrument (other than this Indenture or the Note Documents) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee for such Securities an Officer’s Certificate
stating that the deposit was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(7) the Company must deliver to the Trustee for such Securities an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
| Section 8.05 |
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
|
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Securities of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
-44-
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities of the applicable series.
Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money
or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a)(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
| Section 8.06 |
Repayment to the Company or the Guarantor.
|
Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any,
or interest on, any series of Securities and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable, shall be paid to the Company on its written request or (if then held by the Company) will
be discharged from such trust; and the Holders of such Securities will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less
than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company.
| Section 8.07 |
Reinstatement.
|
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or Section 8.03
hereof, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantor’s obligations under the applicable Note
Documents will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or Section 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or
interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
-45-
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
| Section 9.01 |
Without Consent of Holders of Securities.
|
Notwithstanding Section 9.02 hereof, the Company, the Guarantor and the Trustee may amend or supplement any Note Document without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, error, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in place of certificated
Securities;
(3) to provide for the assumption of the Company’s or the Guarantor’s Obligations to Holders
in the case of a merger or consolidation or sale of all or substantially all of the Company’s or the Guarantor’s assets pursuant to Article 5 of this Indenture (if applicable);
(4) to make any change that would provide any additional rights or benefits to the Holders
or that does not materially adversely affect the legal rights under this Indenture of any such Holder;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Guarantee or the Securities to any provision
of the section describing the applicable Securities in the applicable prospectus supplement or other offering document, to the extent that such was intended to be a verbatim or substantially verbatim recitation of a provision of this Indenture,
the Securities or the Guarantee, as evidenced by an Officer’s Certificate;
(7) to evidence and provide for the acceptance and appointment under this Indenture of a
successor Trustee with respect to the Securities of one or more series pursuant to the requirements thereof;
(8) to provide for the issuance of Securities of any series in accordance with the
limitations set forth in this Indenture;
(9) to allow the Guarantor to execute a supplemental indenture and/or a Guarantee with
respect to the Securities;
(10) to release the Guarantor from its Guarantee pursuant to this Indenture when permitted or
required by this Indenture;
(11) to make any amendment to the provisions of this Indenture relating to the transfer and
legending of Securities not prohibited by this Indenture, including to facilitate the issuance and administration of Securities; provided, however, that such amendment does not materially and adversely
affect the rights of Holders to transfer the Securities; or
-46-
(12) to comply with the rules and procedures of any applicable securities depository.
Upon the request of the Company, accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 13.02 and Section 9.05 hereof, the Trustee shall join with the Company and the Guarantor in the execution of any amended or supplemental indenture or any other amendment of or
supplement to any Note Document authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to (but may, in its sole
discretion) enter into such amended or supplemental indenture or any other amendment of or supplement to any Note Document that affects its own rights, duties, indemnities or immunities under this Indenture or otherwise.
| Section 9.02 |
With Consent of Holders of Securities.
|
(a) Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement
the Note Documents with the consent of the Holders of at least a majority in aggregate principal amount of the applicable series of Securities then outstanding (including, without limitation, consents obtained in connection with a purchase, or
tender offer or exchange offer for, the Securities), and, subject to Section 6.03 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on such
Securities, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Note Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the
applicable series of Securities then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Securities). Section 2.10 hereof shall determine which
Securities are considered to be “outstanding” for purposes of this Section 9.02.
(b) Upon the request of the Company accompanied by a resolution of its Board of Directors and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of the applicable series of Securities as aforesaid, and upon receipt by the Trustee of the documents described in Section 13.02 and Section 9.05
hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture or any amendment of or supplement to any Note Document unless such amended or supplemental indenture or any amendment of or supplement to
any Note Document directly affects the Trustee’s own rights, duties, indemnities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or
supplemental indenture or any amendment of or supplement to any Note Document.
(c) It is not necessary for the consent of the Holders of the applicable series of Securities under this Section
9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.
-47-
(d) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company
shall mail or deliver electronically to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail or deliver electronically such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Section 6.03 and this Section 9.02, the Holders of a majority in aggregate principal amount of the applicable
series of Securities then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of the Note Documents as to such series of Securities.
(e) Notwithstanding the foregoing, without the consent of each Holder of the applicable series of Securities
affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any such Securities held by a non-consenting Holder):
(1) reduce the principal amount of Securities of such series whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the principal of or extend the fixed maturity of any such Security or alter the
provisions with respect to the redemption of such Securities (other than provisions relating to the number of days of notice to be given in the event of a redemption);
(3) reduce the rate of or extend the stated time for payment of interest on any such
Security;
(4) waive a Default or Event of Default in the payment of principal of, or interest or
premium on such series of the Securities (except a rescission of acceleration of such Securities by the Holders of a majority in aggregate principal amount of such series of the Securities and a waiver of the payment default that resulted from
such acceleration);
(5) make any such Security payable in currency other than that stated in such Securities;
(6) make any change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of such Holders to receive payments of principal of, or interest or premium on such series of the Securities;
(7) impair the contractual right expressly set forth in this Indenture or the Securities of
any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities on or after the due dates therefor;
(8) make any change to Section 9.01 hereof and this Section 9.02, as to
the Securities; or
(9) modify the provisions of this Indenture with respect to the subordination of any
Security in a manner adverse to the Holder thereof.
-48-
An amendment under this Section 9.02 may not make any change that adversely affects the rights under Article 12 of any holder of an issue of Senior Indebtedness
unless the holders of the issue pursuant to its terms consent to the change.
| Section 9.03 |
Revocation and Effect of Consents.
|
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder of a Security or subsequent Holder of a Security
may revoke the consent as to its Security if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder, except as provided in Section 9.02(e).
| Section 9.04 |
Notation on or Exchange of Securities.
|
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Security thereafter authenticated. The Company in exchange for all Securities of a
series may issue and the Trustee shall, upon receipt of a Company Order, authenticate new Securities of such series that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Security will not affect the validity and effect of such amendment, supplement or waiver.
| Section 9.05 |
Trustee to Sign Amendments, etc.
|
The Trustee shall sign any amended or supplemental indenture or other amendment of or supplement to any Note Document authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties, liabilities, indemnities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture or other amendment of or supplement to any Note Document
until the Board of Directors of the Company approves it. In executing any amended or supplemental indenture or other amendment of or supplement to any Note Document, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture or other amendment of or supplement to any Note Document is authorized or
permitted by this Indenture and the Note Documents.
ARTICLE 10
GUARANTEE
| Section 10.01 |
Guarantee.
|
The Guarantor hereby unconditionally guarantees to the Holders from time to time of the Securities (a) the full and prompt payment of the principal of and any premium on any
Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, redemption or otherwise, and (b) the full and prompt payment of any interest on and any Additional Amounts with respect to any Security when
and as the same shall become due, subject in each case to any applicable grace period. Each payment by the Guarantor with respect to any Security shall be paid in the currency or currencies specified for payments on such Security as contemplated by
Section 2.01 and pursuant to this Indenture. The Guarantee hereunder constitutes a guarantee of payment and not of collection.
-49-
The obligations of the Guarantor hereunder with respect to a series of Securities shall be absolute and unconditional and, subject to Article 8, shall remain in full force and
effect until the entire principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of such series shall have been paid or provided for in accordance with the provisions of such series and of this
Indenture, irrespective of the validity, regularity or enforceability of any Security of such series or this Indenture, any change or amendment thereto, the absence of any action to enforce the same, any waiver or consent by the Trustee or the
Holder of any Security of such series with respect to any provision of such Security or this Indenture, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstances that may otherwise constitute a
legal or equitable discharge or defense of the Guarantor. The Guarantor hereby waives presentment or demand of payment or notice to the Guarantor with respect to such Security and the obligations evidenced thereby or hereby. The Guarantor further
waives any right of set-off or counterclaim it may have against any Holder of a Security arising from any other obligations any such Holder may have to the Company or the Guarantor.
It is the intention of the Guarantor that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Guarantee. To effectuate the foregoing intention, the obligations of the Guarantor hereunder shall be limited to the maximum amount as
will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guarantor (other than guarantees of the Guarantor in respect of subordinated debt) that are relevant under such laws, result in the obligations
of the Guarantor hereunder not constituting a fraudulent transfer or conveyance.
| Section 10.02 |
Proceedings Against Guarantor.
|
In the event of a default in the payment of principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event of a default in the payment of any interest on or any Additional Amounts with respect to any Security when and as the same
shall become due, each of the Trustee and the Holder of such Security shall have the right to proceed first and directly against the Guarantor under this Indenture without first proceeding against the Company or exhausting any other remedies which
the Trustee or such Holder may have and without resorting to any other security held by it.
-50-
The Trustee shall have the right, power and authority to do all things it deems necessary or advisable to enforce the provisions of this Indenture relating to the Guarantee and
to protect the interests of the Holders of the Securities and, in the event of a default in payment of the principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration,
call for redemption or otherwise, or in the event of a default in the payment of any interest on or any Additional Amounts with respect to any Security when and as the same shall become due, the Trustee may institute or appear in such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its rights and the rights of the Holders, whether for the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee or
in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the principal of, premium (if any) and interest on or any
Additional Amounts with respect to any Security when due, the Trustee may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Guarantor and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Guarantor, wherever situated.
| Section 10.03 |
Subrogation.
|
The Guarantor shall be subrogated to all rights against the Company of any Holder of Securities of a series in respect of any amounts paid by the Guarantor pursuant to the
provisions of the Guarantee; provided, however, that the Guarantor shall be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation only after the principal of, premium (if any) and interest on and
any Additional Amounts with respect to all Securities of such series have been paid in full.
| Section 10.04 |
Guarantee for Benefit of Holders.
|
The Guarantee contained in this Indenture is entered into by the Guarantor for the benefit of the Holders from time to time of the Securities. Such provisions shall not be
deemed to create any right in, or to be in whole or in part for the benefit of, any Person other than the Trustee, the Guarantor, the Holders from time to time of the Securities and their permitted successors and assigns.
ARTICLE 11
SATISFACTION AND DISCHARGE
For purposes of this Indenture, this Article 11 provides the terms upon which satisfaction and discharge can occur. For purposes of any series of Securities issued
under this Indenture, the Supplemental Indenture in respect of such series of Securities will specify the terms upon which satisfaction and discharge can occur for such Securities, which may include some, all or none of the terms contained in this
Article 11.
| Section 11.01 |
Satisfaction and Discharge.
|
This Indenture will be discharged and will cease to be of further effect as to all Securities of a series issued hereunder (except as otherwise specified herein), when:
(1) either:
-51-
(A) all such Securities that have been authenticated, except lost, stolen or destroyed
Securities that have been replaced or paid and Securities for whose payment money has been deposited in trust and thereafter repaid to the Company or the Guarantor, have been delivered to the Trustee for cancellation; or
(B) all such Securities that have not been delivered to the Trustee for cancellation have
become due and payable or will become due and payable within one year by reason of the issuance of a notice of redemption or otherwise and the Company or the Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Securities not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption, as the case may be; provided, that upon any redemption that requires the payment of a premium, the amount deposited shall be sufficient to the extent that an amount is deposited with the
Trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be
deposited with the Trustee on or prior to the date of redemption (it being understood that any satisfaction and discharge shall be subject to the condition subsequent that such deficit is in fact paid and that the Trustee shall have no liability
whatsoever in the event that such Applicable Premium Deficit is not in fact paid). Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium
Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(2) no Default or Event of Default has occurred and is continuing on the date of the deposit
(other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company
or the Guarantor, as applicable, is a party or by which the Company or the Guarantor, as applicable, is bound;
(3) the Company or the Guarantor of such Securities has paid or caused to be paid all sums
payable by it with respect to all of such series of the Securities under this Indenture; and
(4) the Company has delivered irrevocable written instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities of such series at maturity or the redemption date, as the case may be.
-52-
In addition, the Company must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee for such Securities stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture as to a series of Securities issued hereunder, if money has been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge any provisions related to any
other series of Securities or those provisions of Section 7.06 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture as to a series of Securities issued hereunder.
| Section 11.02 |
Application of Trust Money.
|
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. Money and securities held in
trust are not subject to Article 12.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any applicable Guarantor’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided, that if the Company has made any payment of principal of, premium, if any, or interest on any
Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
SUBORDINATION OF SECURITIES AND GUARANTEE
| Section 12.01 |
Securities and Guarantee Subordinated to Senior Indebtedness.
|
The Company and each Holder of a Security of a series and the related Guarantee, by his acceptance thereof, agree that (a) the payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to each and all the Securities of such series and the related Guarantee and (b) any other payment payable to a Holder of a Security in respect of the Securities of such series and the related
Guarantee, including on account of the acquisition or redemption of Securities of such series by the Company, is subordinated, to the extent and in the manner provided in this Article 12, to the prior payment in full of all Senior
Indebtedness of the Company and, in the case of the related Guarantee, all Senior Indebtedness of the Guarantor, whether outstanding at the date of this Indenture or thereafter created, incurred, assumed or guaranteed, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness of the Company and, in the case of the related Guarantee, Senior Indebtedness of the Guarantor.
-53-
This Article 12 shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Indebtedness of
the Company and, in the case of the related Guarantee, Senior Indebtedness of the Guarantor, and such provisions are made for the benefit of such holders of Senior Indebtedness, and such holders may enforce such provisions.
| Section 12.02 |
No Payment on Securities in Certain Circumstances.
|
(a) Unless otherwise provided with respect to the Securities of a series as contemplated by Section 2.01,
no payment shall be made by or on behalf of the Company or the Guarantor, as the case may be, on account of the principal of, premium (if any) with respect to, or interest or any other amount due on, the Securities of any series, the related
Guarantee or to acquire any Securities of such series (including any repurchases of Securities of such series pursuant to the provisions thereof at the option of the Holder thereof) for cash or property, or on account of any redemption provisions
of Securities of such series, in the event of default in payment of any principal of, premium (if any) or interest on any Senior Indebtedness of the Company or the Guarantor, as the case may be, when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by acceleration of maturity or otherwise (but subject to any applicable grace periods) (a “Payment Default”), unless and until such Payment Default has been
cured or waived or otherwise has ceased to exist or such Senior Indebtedness shall have been discharged or paid in full.
(b) In furtherance of the provisions of Section 12.01, in the event that, notwithstanding the foregoing
provisions of this Section 12.02, any payment or distribution of assets of the Company or the Guarantor, as the case may be, shall be received by the Trustee, the Paying Agent or the Holders of Securities of any series and the related
Guarantee at a time when such payment or distribution was prohibited by the provisions of this Section 12.02, then, unless such payment or distribution is no longer prohibited by this Section 12.02, such payment or distribution
(subject to the provisions of Section 12.07) shall be received and held in trust by the Trustee, the Paying Agent or such Holder for the benefit of the holders of Senior Indebtedness of the Company or the Guarantor, as the case may be,
and shall be paid or delivered by the Trustee (subject to the provisions of Section 12.06), the Paying Agent or such Holders, as the case may be, to the holders of Senior Indebtedness of the Company or the Guarantor, as the case may be,
remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness of the Company or the Guarantor, as the case
may be, may have been issued, ratably, according to the aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness in full after giving effect
to all concurrent payments and distributions to or for the holders of such Senior Indebtedness.
-54-
| Section 12.03 |
Securities and Guarantee Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation or Reorganization.
|
Upon any dissolution, winding up, total or partial liquidation or reorganization of the Company or the Guarantor, as the case may be, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or similar proceeding or upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness of the Company or the Guarantor, as the case may be, shall first be
entitled to receive payments in full before the Holders of Securities of any series and the related Guarantee are entitled to receive any payment on account of the principal of, premium (if any) or interest on or any Additional Amounts with
respect to Securities of such series and the related Guarantee;
(b) any payment or distribution of assets of the Company or the Guarantor, as the case may be, of any kind or
character, whether in cash, property or securities, to which the Holders of Securities of any series and the related Guarantee or the Trustee on behalf of such Holders would be entitled, except for the provisions of this Article 12, shall
be paid by the liquidating trustee or agent or other Person making such a payment or distribution directly to the holders of such Senior Indebtedness or their representative, ratably according to the respective amounts of Senior Indebtedness held
or represented by each, to the extent necessary to make payment in full of all such Senior Indebtedness remaining unpaid after giving effect to all concurrent payments and distributions to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company or
the Guarantor, as the case may be, of any kind or character, whether in cash, property or securities, shall be received by the Trustee or the Holders of Securities of any series and the related Guarantee or any Paying Agent (or, if the Company or
any Subsidiary is acting as the Paying Agent, money for any such payment or distribution shall be segregated or held in trust) on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the
Securities of such series and the related Guarantee before all Senior Indebtedness of the Company or the Guarantor, as the case may be, is paid in full, such payment or distribution (subject to the provisions of Section 12.07) shall be
received and held in trust by the Trustee or such Holder or Paying Agent for the benefit of the holders of such Senior Indebtedness, or their respective representatives, ratably according to the respective amounts of such Senior Indebtedness held
or represented by each, to the extent necessary to make payment as provided herein of all such Senior Indebtedness remaining unpaid after giving effect to all concurrent payments and distributions and all provisions therefor to or for the holders
of such Senior Indebtedness, but only to the extent that as to any holder of such Senior Indebtedness, as promptly as practical following notice from the Trustee to the holders of such Senior Indebtedness that such prohibited payment has been
received by the Trustee, Holder(s) or Paying Agent (or has been segregated as provided above), such holder (or a representative therefor) notifies the Trustee in writing of the amounts then due and owing on such Senior Indebtedness, if any, held
by such holder and only the amounts specified in such notices to the Trustee shall be paid to the holders of such Senior Indebtedness.
-55-
| Section 12.04 |
Subrogation to Rights of Holders of Senior Indebtedness.
|
Subject to the payment in full of all Senior Indebtedness of the Company or the Guarantor, as the case may be, as provided herein, the rights of the Holders of the Securities
of any series and the related Guarantee and the rights of the Trustee to the extent of amounts owed to it under Section 7.06 shall be subrogated (to the extent of the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article 12) to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company or the Guarantor, as the case may be, applicable to
the Senior Indebtedness or the related Guarantee until the principal of, premium, if any, and interest on the Securities of such series shall be paid in full. For the purpose of such subrogation, no such payments or distributions to the holders of
such Senior Indebtedness by the Company or the Guarantor, as the case may be, of any cash, property or securities to which the Holders of such Securities or the related Guarantee or the Trustee on their behalf would be entitled except for the
provisions of this Article 12 and no payment over pursuant to the provisions of this Article 12 to the holders of Senior Indebtedness by Holders of such Securities or the related Guarantee or the Trustee on their behalf shall, as
between the Company or the Guarantor, as the case may be, its or their creditors other than holders of Senior Indebtedness and such Holders, be deemed to be a payment by the Company or the Guarantor, as the case may be, to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article 12 are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities of a series and the related Guarantee, on the one
hand, and the holders of such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Securities and the related Guarantee would otherwise have been entitled but for the provisions of this Article 12
shall have been applied, pursuant to the provisions of this Article 12, to the payment of amounts payable under Senior Indebtedness of the Company or the Guarantor, as the case may be, then such Holders shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by such holders of Senior Indebtedness in excess of the amount sufficient to pay all amounts payable under or in respect of such Senior Indebtedness in full.
| Section 12.05 |
Obligations of the Company and the Guarantor Unconditional.
|
Nothing contained in this Article 12 or elsewhere in this Indenture or in the Securities or the related Guarantee is intended to or shall impair, as between the Company
or the Guarantor, as the case may be, and the Holders of the Securities of any series and the related Guarantee, the obligation of the Company or the Guarantor, as the case may be, which is absolute and unconditional, to pay to such Holders the
principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of such series as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative
rights of such Holders and creditors of the Company or the Guarantor, as the case may be, other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 12, of the holders of Senior Indebtedness in respect of cash, property or securities of the Company or the Guarantor,
as the case may be, received upon the exercise of any such remedy. Notwithstanding anything to the contrary in this Article 12 or elsewhere in this Indenture or in the Securities, upon any distribution of assets of the Company or the
Guarantor, as the case may be, referred to in this Article 12, the Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders of the Securities and the related Guarantee shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or other Person making any distribution
to the Trustee or to such Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other Indebtedness of the Company or the Guarantor, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 12 so long as such court has been apprised of the provisions of, or the order, decree or
certificate makes reference to, the provisions of this Article 12.
-56-
| Section 12.06 |
Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.
|
The Trustee shall not at any time be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee unless and until a
Responsible Officer of the Trustee or any Paying Agent shall have received, no later than two Business Days prior to such payment, written notice thereof from the Company or the Guarantor, as the case may be, or from one or more holders of Senior
Indebtedness of the Company or the Guarantor, as the case may be, or from any representative thereof and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.
The Trustee, subject to the provisions of Article 7 of this Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company or the Guarantor, as the case may be (or a trustee on behalf of such holder), to establish that such notice has been given by a holder of such Senior Indebtedness or a
trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness to participate in any payment
or distribution pursuant to this Article 12, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article 12, and, if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
The Company shall give prompt written notice to the Trustee of any facts known to the Company that would prohibit the making of any payment to or by the Trustee in respect of
the Securities.
-57-
| Section 12.07 |
Application by Trustee of Amounts Deposited with It.
|
Amounts deposited in trust with the Trustee pursuant to and in accordance with Article 11 shall be for the sole benefit of Holders of Securities of the series for the
benefit of which such amounts were deposited and, as applicable, the Trustee, and, to the extent allocated for the payment of Securities of such series, shall not be subject to the subordination provisions of this Article 12. Otherwise, any
deposit of assets with the Trustee or the Paying Agent (whether or not in trust) for the payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities of any series shall be subject to the
provisions of Sections 12.01, 12.02, 12.03 and 12.04; provided that if prior to two Business Days preceding the date on which by the terms of this Indenture any such assets may become distributable for any purpose
(including, without limitation, the payment of either principal of, premium (if any) or interest on or any Additional Amounts with respect to any Security), a Responsible Officer of the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 12.06, then the Trustee or such Paying Agent shall have full power and authority to receive such assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary that may be received by it on or after such date; and provided further that nothing contained in this Article 12 shall prevent the Company from making, or the Trustee from receiving or
applying, any payment in connection with the redemption of Securities of a series if the first publication of notice of such redemption (whether by mail or otherwise in accordance with this Indenture) has been made, and the Trustee has received
such payment from the Company, prior to the occurrence of any of the contingencies specified in Section 12.02 or 12.03.
| Section 12.08 |
Subordination Rights Not Impaired by Acts or Omissions of the Company, the Guarantor or Holders of Senior Indebtedness.
|
Except as may be limited by applicable law, no right of any present or future holders of any Senior Indebtedness to enforce subordination provisions contained in this Article
12 shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or the Guarantor, as the case may be, or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company or the Guarantor, as the case may be, with the terms of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. The holders of Senior Indebtedness may extend,
renew, modify or amend the terms of the Senior Indebtedness or any security therefor and release, sell or exchange such security and otherwise deal freely with the Company or the Guarantor, as the case may be, all without affecting the liabilities
and obligations of the parties to this Indenture or the Holders of the Securities of any series and the related Guarantee.
| Section 12.09 |
Trustee to Effectuate Subordination of Securities and Guarantee.
|
Each Holder of a Security of any series and the related Guarantee by his acceptance thereof authorizes and expressly directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provisions contained in this Article 12, subject to Article 7, and to protect the rights of the Holders of the Securities of such series and the related Guarantee
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for such purpose, including, in the event of any dissolution, winding up, liquidation or reorganization of the Company or the Guarantor, as the case may be (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors of the Company or the Guarantor, as the case may be), the filing of a claim for the unpaid balance of his Securities or the related Guarantee in
the form required in said proceedings and to take such steps as may be necessary or appropriate to seek approval of said claim. If the Trustee does not file a proper claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the holders of the Senior Indebtedness or their representative is hereby authorized to have the right to file and are hereby authorized to file an appropriate claim for and on
behalf of the Holders of Securities of such series or the related Guarantee. Nothing contained herein shall be deemed to authorize the Trustee or the holders of Senior Indebtedness or their representative to authorize or consent to or accept or
adopt on behalf of any Holder of Securities of any series any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series, the related Guarantee or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Indebtedness or their representative to vote in respect of the claim of any Holder of the Securities of such series in any such proceeding.
-58-
| Section 12.10 |
Right of Trustee to Hold Senior Indebtedness.
|
The Trustee in its individual capacity shall be entitled to all of the rights set forth in this Article 12 in respect of any Senior Indebtedness at any time held by it
to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
| Section 12.11 |
Article 12 Not to Prevent Events of Default.
|
The failure to make a payment on account of principal of or premium (if any) or interest on the Securities of any series or the related Guarantee by reason of any provision of
this Article 12 shall not be construed as preventing the occurrence of a Default or an Event of Default under Section 6.01 with respect to Securities of such series or the related Guarantee or in any way prevent the Holders of the
Securities of such series or the related Guarantee from exercising any right hereunder other than the right to receive payment on the Securities of such series or the related Guarantee.
| Section 12.12 |
No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
|
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities of any series or the Company or the Guarantor, as the case may be, or any other Person, cash, property or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 12 or otherwise. Nothing in this Section 12.12 shall affect the obligation of any other such Person to hold such payment for the benefit of, and to pay such payment over to, the holders of Senior Indebtedness
or their representative.
| Section 12.13 |
Article Applicable to Paying Agent.
|
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article
12 shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article 12
in addition to or in place of the Trustee; provided, however, that this Section 12.13 shall not apply to the Company, the Guarantor or any Subsidiary if the Company, the Guarantor or such Subsidiary acts as Paying Agent.
-59-
ARTICLE 13
MISCELLANEOUS
| Section 13.01 |
Notices.
|
Any notice or communication by the Company, the Guarantor or the Trustee to the other parties hereto is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), email, facsimile transmission or overnight air courier guaranteeing next-day delivery, to the others’ address:
If to the Company and the Guarantor:
Vistra Corp.
6555 Sierra Drive
Irving, Texas 75039
Attention: Legal Department
With a copy to:
Sidley Austin LLP
2323 Cedar Springs, Suite 2600
Dallas, Texas 75201
Email: [email protected]
Facsimile Number: (214) 981-3400
Attention: William D. Howell
If to the Trustee:
Wilmington Trust, National Association
99 Wood Avenue South – Suite 1000
Iselin, NJ 08830
Email: [email protected]
Fax: (612)–217-5651
Attention: Vistra Operations Company LLC Account Manager
The Company, the Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will 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 sent, without automatic reply that such was unsuccessful, if emailed; when receipt acknowledged, if sent by facsimile transmission; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
-60-
Any notice or communication to a Holder will be delivered electronically or mailed by first class mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery or emailed to its address shown on the register kept by the Registrar. Any notice or communication will also be so mailed or sent to any person described in TIA § 313(c), to the extent required by the TIA.
Failure to mail or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is delivered, mailed or otherwise sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company or the Guarantor delivers a notice or communication to Holders, it will send a copy to the Trustee and each Agent at the same time.
| Section 13.02 |
Certificate and Opinion as to Conditions Precedent.
|
Upon any request or application by the Company or the Guarantor to the Trustee to take any action under this Indenture (other than in connection with the Company Order, dated
the date hereof, and delivered to the Trustee in connection with the issuance of the Initial Notes), the Company or the Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officer’s Certificate in form and substance satisfactory to the Trustee (which must
include the statements set forth in Section 13.03 hereof) stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any, provided for in this Indenture and the other
Note Documents relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance satisfactory to the Trustee (which must
include the statements set forth in Section 13.03 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants in the Note Documents relating to the proposed action have been satisfied and, in the case
of any action under Section 5.01(a)(2), that the Indenture and the other Note Documents and the applicable Securities are the valid and binding obligations of the Successor Company; provided, however,
that the Company shall not be required to furnish such Opinion of Counsel in connection with its request for the Trustee to authenticate the Initial Notes on the date of this Indenture.
| Section 13.03 |
Statements Required in Certificate or Opinion.
|
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture or the other Note Documents (other than a certificate
provided pursuant to TIA § 314(a)(4)) must comply with the applicable provisions of TIA § 314(e) and must include substantially:
(1) a statement that the Person making such certificate or opinion has read such covenant or
condition;
-61-
(2) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been satisfied.
| Section 13.04 |
Rules by Trustee and Agents.
|
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Agents may make reasonable rules and set reasonable requirements for their functions.
| Section 13.05 |
No Personal Liability of Directors, Officers, Employees and Stockholders.
|
No director, officer, employee, incorporator or stockholder of the Company or the Guarantor, as such, will have any liability for any obligations of the Company or the
Guarantor under the Securities, this Indenture, the Guarantee, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
| Section 13.06 |
Governing Law.
|
(a) THIS INDENTURE, THE SECURITIES, AND THE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto irrevocably and unconditionally submits to the jurisdiction of the Supreme Court of the
State of New York sitting in the Borough of Manhattan, New York County and of the United States District Court of the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any jurisdiction thereof, in any
action or proceeding arising out of or relating to this Indenture, the Securities or the Guarantee, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture shall affect any right that any party hereto otherwise has to bring any action or proceeding relating
to this Indenture against any party hereto or its properties in the courts of any jurisdiction.
-62-
(c) Each party hereto irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture in any court referred to in Section 13.06(b) hereof. Each party
hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process in the manner provided for notices in Section
13.01 hereof, such service to be effective upon receipt. Nothing in this Indenture will affect the right of any party hereto to serve process in any other manner permitted by law.
| Section 13.07 |
Waiver of Immunity.
|
To the extent that the Company or the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution or execution, on the ground of sovereignty or otherwise) with respect to itself or its property, it hereby irrevocably waives, to the fullest extent permitted by Applicable Law,
such immunity in respect of its obligations under this Indenture, the Securities and the Guarantees.
| Section 13.08 |
Waiver of Jury Trials.
|
ALL PARTIES HERETO HEREBY (AND THE HOLDERS, BY THEIR ACCEPTANCE OF THE SECURITIES, THEREBY) IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, THE GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
| Section 13.09 |
No Adverse Interpretation of Other Agreements.
|
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company, the Guarantor or any of their respective Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
| Section 13.10 |
Successors.
|
All agreements of the Company and the Guarantor in this Indenture and the Securities will bind their respective successors. All agreements of the Trustee in this Indenture will
bind its successors.
| Section 13.11 |
USA Patriot Act.
|
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
-63-
| Section 13.12 |
Severability.
|
In case any provision in this Indenture or in the Securities 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 13.13 |
Counterpart Originals.
|
The parties may sign any number of copies of this Indenture. Each signed copy will 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, or PDF or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture and
signature pages for all purposes and will be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001-7006), the Electronic Signatures and Records Act of 1999 (N.Y. State Tech. §§ 301-309), or any other similar state laws based on the Uniform
Electronic Transactions Act; provided, that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format
unless expressly agreed to by such Trustee pursuant to procedures approved by such Trustee.
| Section 13.14 |
Table of Contents, Headings, etc.
|
The Table of Contents, cross-reference table (as applicable) 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 will in no way modify or restrict any of the terms or provisions hereof.
| Section 13.15 |
Communication by Holders of Securities with Other Holders of Securities.
|
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Guarantor, the
Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
| Section 13.16 |
Trust Indenture Act Controls.
|
This Indenture shall incorporate and be governed by the provisions of the TIA that are required to be part of and to govern indentures qualified under the TIA, to the extent
this Indenture is qualified thereunder. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed duties will control.
[Signatures on following pages]
-64-
|
Dated: September 24, 2026
|
Vistra Operations Company LLC, as Issuer
|
|
|
By:
|
/s/ William M. Quinn
|
|
|
Name: William M. Quinn
|
||
|
Title: Senior Vice President and Treasurer
|
||
|
Vistra Corp., as Guarantor
|
||
|
By:
|
/s/ William M. Quinn
|
|
|
Name: William M. Quinn
|
||
|
Title: Senior Vice President and Treasurer
|
||
|
WILMINGTON TRUST, NATIONAL ASSOCIATION,
|
||
|
as Trustee
|
||
|
By:
|
/s/ Arlene Thelwell
|
|
|
Name:
|
Arlene Thelwell
|
|
|
Title:
|
Vice President
|
Exhibit 4.2
VISTRA OPERATIONS COMPANY LLC,
as Issuer
VISTRA CORP.,
as Guarantor
7.000% SERIES A JUNIOR SUBORDINATED NOTES DUE 2057
7.250% SERIES B JUNIOR SUBORDINATED NOTES DUE 2057
SUPPLEMENTAL INDENTURE
Dated as of September 24, 2026
Wilmington Trust, National Association,
as Trustee
TABLE OF CONTENTS
| Page | |||
|
ARTICLE 1 DEFINITIONS
|
1 | ||
|
Section 1.1
|
Defined Terms
|
1
|
|
|
ARTICLE 2 DESIGNATION OF THE NOTES
|
9 |
||
|
Section 2.1
|
Designation and Principal Amount
|
9
|
|
|
Section 2.2
|
Form of the Notes
|
9
|
|
|
Section 2.3
|
Maturity Date of the Notes
|
10
|
|
|
Section 2.4
|
Interest on the Notes
|
10
|
|
|
Section 2.5
|
Minimum Denominations
|
11
|
|
|
Section 2.6
|
No Sinking Fund
|
11
|
|
|
Section 2.7
|
[Reserved].
|
11
|
|
|
Section 2.8
|
Paying Agent and Registrar
|
11
|
|
|
Section 2.9
|
Guarantee
|
11
|
|
|
Section 2.10
|
Other Terms of the Notes
|
11
|
|
|
ARTICLE 3 EVENTS OF DEFAULT
|
11 |
||
|
Section 3.1
|
Events of Default
|
11
|
|
|
Section 3.2
|
Acceleration
|
12
|
|
|
ARTICLE 4 OPTION TO DEFER INTEREST PAYMENTS
|
12 |
||
|
Section 4.1
|
Option to Defer Interest Payments
|
12
|
|
|
ARTICLE 5 OPTIONAL REDEMPTION BY THE COMPANY
|
14 |
||
|
Section 5.1
|
Optional Redemption
|
14
|
|
|
Section 5.2
|
Payments of Interest
|
15
|
|
|
Section 5.3
|
Notice of Redemption
|
15
|
|
|
ARTICLE 6 SUCCESSORS
|
16 | ||
|
Section 6.1
|
Merger, Consolidation or Sale of Assets
|
16
|
|
|
Section 6.2
|
Successor Company Substituted
|
16
|
|
|
ARTICLE 7 MISCELLANEOUS
|
17 |
||
|
Section 7.1
|
Execution and Delivery
|
17
|
|
|
Section 7.2
|
Ratification of Indenture; Supplemental Indenture Part of Indenture
|
17
|
|
|
Section 7.3
|
Tax Treatment
|
17
|
|
|
Section 7.4
|
Severability
|
17
|
|
|
Section 7.5
|
Governing Law
|
17
|
|
|
Section 7.6
|
Waiver of Jury Trial
|
17
|
|
|
Section 7.7
|
Execution in Counterparts; Electronic Signatures
|
17
|
|
|
Section 7.8
|
Effect of Headings
|
18
|
|
|
Section 7.9
|
Trustee
|
18
|
|
i
FIRST SUPPLEMENTAL INDENTURE (“Supplemental Indenture”), dated as of
September 24, 2026, by and among Vistra Operations Company LLC, a Delaware limited liability company, as the issuer (the “Company”), Vistra Corp., a Delaware corporation, as
guarantor (the “Guarantor”) and Wilmington Trust, National Association, not in its individual capacity but solely as trustee (the “Trustee”), under the Subordinated Indenture dated as of the date hereof among the Company, the Guarantor and the Trustee (the “Base Indenture”
and, together with the Supplemental Indenture, the “Subordinated Indenture”).
WITNESSETH
WHEREAS, the Company, the
Guarantor and the Trustee are parties to the Base Indenture providing for the issuance by the Company of Securities to be issued in one or more series as determined by the Company, in an
unlimited aggregate principal amount which may be authenticated and delivered as provided in the Base Indenture.
WHEREAS, the Company and
the Guarantor desire, and the Company has requested the Trustee, pursuant to Section 9.01 of the Base Indenture, to join with them in the execution and delivery of this Supplemental Indenture in order to supplement the Base Indenture as and to
the extent set forth herein to provide for the issuance and terms of the Notes.
WHEREAS, Section 9.01 of
the Base Indenture provides that the Company and the Trustee, without the consent of any holders of the Company’s Securities, may amend or waive certain terms and covenants in the Indenture as otherwise permitted under the Base Indenture.
WHEREAS, the Company and
the Guarantor desire to the extent set forth herein to provide for the issuance and the terms of the Notes and the Guarantee (each as defined herein).
WHEREAS, the execution and
delivery of this Supplemental Indenture has been duly authorized by a resolution of the Board of Directors of the Company and the Guarantor.
WHEREAS, all conditions
and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument of the Company and the Guarantor in accordance with its terms have been performed and fulfilled and the execution and delivery hereof has been
in all respects duly authorized by the Company and the Guarantor.
NOW, THEREFORE, the
Company, the Guarantor and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Series A Notes and Series B Notes (each as defined below):
ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms. Unless the context otherwise requires, capitalized terms used but not defined herein shall have the meaning set forth in the Base Indenture. As used in this Supplemental Indenture, terms
defined in the Base Indenture or in the preamble or recitals hereto are used as so defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture
as a whole and not to any particular section hereof. A reference to a Section or Article is to a Section or Article of this Supplemental Indenture unless otherwise stated. A reference to a Section or Article in the Base Indenture that has
been replaced or amended in this Supplemental Indenture shall be construed for purposes of the Notes to refer to such Section or Article as replaced or amended in this Supplemental Indenture.
The following additional terms are hereby established for the purposes of this Supplemental Indenture and shall have the meanings set forth in this Supplemental Indenture solely for the purposes of this Supplemental Indenture:
“Additional Interest” has the meaning set forth in Section 2.4.
“Additional Notes” means additional Notes (other than the Initial Notes)
issued from time to time under this Supplemental Indenture in accordance with Section 2.1(c).
“Applicable Procedures” means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the Depository, Euroclear and Clearstream that apply to such transfer or exchange.
“Attributable Debt” means, in respect of a sale and leaseback transaction,
at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capitalized Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
“Base Indenture” has the meaning set forth in Preamble.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act. The terms “Beneficially Owns,” “Beneficially Owned” and “Beneficial Ownership” have a corresponding meaning.
“Board of Directors” means:
(1) with respect to
a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to
a partnership, the board of directors of the general partner of the partnership;
(3) with respect to
a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to
any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day other than a Saturday, a Sunday or a day on
which banking institutions in New York City (and, with respect to payments, in the place of payment) are authorized or required by law to remain closed.
“Calculation Agent” means, at any time, the entity appointed by the
Company and serving as such agent with respect to the applicable series of Notes at such time. Unless the Company has validly called all of the outstanding Notes of the applicable series for redemption on a Redemption Date occurring prior to the
First Series A Reset Date or First Series B Reset Date, the Company will appoint a calculation agent for the applicable series of notes prior to the Reset Interest Determination Date immediately preceding the First Series A Reset Date or First
Series B Reset Date, as applicable; provided that, if the Company has called all of the outstanding Notes of a particular series for redemption on a Redemption Date
occurring prior to the First Series A Reset Date or First Series B Reset Date, as applicable, but the Company does not redeem all of the outstanding notes of such series on such Redemption Date, the Company will appoint a Calculation Agent for
the Notes of such series as promptly as practicable after such proposed Redemption Date. The Company may terminate any such appointment and may appoint a successor calculation agent at any time and from time to time (so long as there will always
be a calculation agent in respect of each series of notes when so required). The Company may appoint itself, the Guarantor or one of their respective affiliates as Calculation Agent.
“Capital Stock” means:
(1) in the case of a corporation,
corporate stock;
2
(2) in the case of
an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a
partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Capitalized Lease Obligations” means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, and the maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.
“Change of Control” means the occurrence of any of the following after the
Issue Date:
(1) the sale,
transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Guarantor and its subsidiaries, taken as a
whole, to any “person” (as that term is used in Section 13(d) of the Exchange Act), but excluding any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of such plan; or
(2) the Guarantor
becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the consummation of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any “person” (as defined above), other than (x) any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of such plan, (y) any one or more parents of the Guarantor in which no “person,” directly or indirectly, holds beneficial ownership of Voting Stock representing more than 50% of the aggregate voting power represented by the
issued and outstanding Voting Stock of such parent, or (z) an entity owned directly or indirectly by the direct or indirect stockholders of the Guarantor in substantially the same proportion as their direct or indirect ownership of Voting
Stock of the Guarantor prior to such transaction becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Guarantor, measured by voting power rather than number of shares.
For the avoidance of doubt, for purposes of this definition, (i) a merger or consolidation of a subsidiary of the Guarantor into another
subsidiary of the Guarantor, or (ii) a sale of a subsidiary of the Guarantor to another person in a transaction not prohibited by the terms of the Subordinated Indenture will not be deemed to be a Change of Control.
Notwithstanding the preceding or any provision of Rule 13d-3 or 13d-5 under the Exchange Act, (i) a Person or “group” shall not be deemed to
Beneficially Own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such
agreement, (ii) a Person or “group” will not be deemed to Beneficially Own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights)
unless it owns more than 50% of the total voting power of the Voting Stock of such parent entity, and (iii) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such
right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a “Beneficial Owner.”
“Change of Control Payment” has the meaning set forth in Section 5.1(e).
3
“Change of Control Payment Date” has the meaning set forth in Section 5.1(e).
“Change of Control Redemption” has the meaning set forth in Section
5.1(e).
“Change of Control Triggering Event” means the occurrence of both a Change
of Control and a Rating Decline.
“Clearstream” means Clearstream Banking, société anonyme, Luxembourg, and
any successor thereto.
“Company” has the meaning set forth in Preamble.
“DTC legend” means the legend set forth in Exhibit B.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, and any successor thereto.
“Event of Default” has the meaning set forth in Section 3.1.
“First Series A Reset Date” means March 15, 2032.
“First Series B Reset Date” means March 15, 2037.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that
is a Nationally Recognized Statistical Rating Organization.
“Five-year U.S. Treasury Rate” means, as of any Reset Interest
Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years
from the next Reset Date and trading in the public securities markets, for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published under the heading “Treasury Constant Maturities” in
the most recent H.15 as of 5:00 p.m. (Eastern Time), or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be
determined by interpolation between the arithmetic mean of the yields to maturity for each of the two series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible
to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination
Date, in each case for the five consecutive Business Days immediately prior to the respective Reset Interest Determination Date as published under the heading “Treasury Constant Maturities” in the most recent H.15 as of 5:00 p.m. (Eastern Time).
If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same rate determined for the prior Reset Interest Determination Date or, if
the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date preceding (i) the First Series A Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Series A
Reset Date will be deemed to be 7.000% per year for the Series A Notes, which is the same interest rate as in effect from and including the original issue date to, but excluding, the First Series A Reset Date, and (ii) the First Series B Reset
Date, then the interest rate applicable for the Reset Period beginning on and including the First Series B Reset Date will be deemed to be 7.250% per year for the Series B Notes, which is the same interest rate as in effect from and including the
original issue date to, but excluding, the First Series B Reset Date.
“GAAP” means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided, however, that, if (i) any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the Issue Date, then, solely with
respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the Issue Date and (ii) if the Company notifies the Trustee that it desires to eliminate the effect of any change occurring after the Issue
Date in GAAP or in the application thereof on the operation of any provision of the Subordinated Indenture, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
4
“Global Notes” has the meaning set forth in Section 2.2(a).
“Guarantor” has the meaning set forth in Preamble.
“H.15” means the statistical release designated as such, or any successor
publication, published by the Board of Governors of the U.S. Federal Reserve System (or any successor thereto).
“Hedging Obligations” means, with respect to any specified Person, the
obligations of such Person under:
(1) currency
exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; or
(2) (i) agreements or
arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, commodity prices or commodity transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and
sale agreements, fuel purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for commercial or trading
activities with respect to the purchase, transmission, distribution, sale, lease or hedge of any energy related commodity or service.
“Indebtedness” means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables, except as provided in clause (5) below), whether or not contingent:
(1) in respect of
borrowed money;
(2) evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of
bankers’ acceptances;
(4) representing
Capitalized Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5) representing
the balance deferred and unpaid of the purchase price of any property (including trade payables) or services due more than six months after such property is acquired or such services are completed;
(6) representing
the net amount owing under any Hedging Obligations; or
(7) if and to the
extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; provided
that the amount of such Indebtedness shall be deemed not to exceed the lesser of the amount secured by such Lien and the value of the Person’s property securing such Lien.
5
“Indirect Participant” means a Person who holds a beneficial interest in a
Global Note through a Participant.
“Initial Notes” means the $850,000,000 aggregate principal amount of the
Series A Notes and $650,000,000 aggregate principal amount of the Series B Notes issued under this Supplemental Indenture on the Issue Date.
“Interest Payment Date” has the meaning set forth in Section 2.4.
“Investment Grade” in respect of a series of Notes means a rating of: (a)
Baa3 or better by Moody’s; (b) BBB- or better by Fitch; or (c) BBB- or better from S&P (or the equivalent of such rating by such rating organization or, if no rating of Moody’s, Fitch or S&P exists, the equivalent of such rating by any
other Nationally Recognized Statistical Rating Organization selected by the Company as a replacement agency).
“Issue Date” means September 24, 2026.
“Lien” means, with respect to any asset, any mortgage, pledge, security
interest, hypothecation, collateral assignment, lien (statutory or other) or similar encumbrance (including any conditional sale or other title retention agreement or any lease or license in the nature thereof); provided that in no event shall an operating lease be deemed to be a Lien.
“Maturity Date” has the meaning set forth in Section 2.3.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors
or assigns that is a Nationally Recognized Statistical Rating Organization.
“most recent H.15” means the H.15 published closest in time but prior to
the close of business on the second Business Day prior to the applicable Series A Reset Date or Series B Reset Date.
“Nationally Recognized Statistical Rating Organization” means a nationally
recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act.
“Notes” has the meaning set forth in Section 2.1(a)(ii).
“Optional Deferral Period” has the meaning set forth in Section 4.1(a).
“Participant” means, with respect to the Depository, Euroclear or
Clearstream, a Person who has an account with the Depository, Euroclear or Clearstream, respectively, and, with respect to DTC, shall include Euroclear and Clearstream.
“Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Place of Payment” means, with respect to the notes of any series, the
place or places where the principal of, premium (if any) and interest on the notes of that series are payable as specified in accordance with the Subordinated Indenture.
“Rating Agencies” means (1) Moody’s, (2) Fitch, (3) S&P and (4) if any
of Moody’s, Fitch or S&P shall not make a rating of the Notes of a series available, a Nationally Recognized Statistical Rating Organization selected by the Company which shall be substituted for Moody’s, Fitch or S&P, as the case may be,
with respect to such series of notes.
6
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally
recognized statistical rating organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Guarantor or the Company (together
with any successor thereto, a “rating agency”) in assigning equity credit to securities such as the notes, (a) as such methodology was in effect on September 10, 2026, in
the case of any rating agency that published a rating for the Guarantor or the Company as of September 10, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Guarantor or the Company,
in the case of any rating agency that first publishes a rating for the Guarantor or the Company after September 10, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of
time for which a particular level of equity credit pertaining to the notes of either series by such rating agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser
amount) being assigned by such rating agency to the notes of either series as of the date of such change, clarification or amendment than the equity credit that would have been assigned to such notes by such rating agency had the current
methodology not been changed.
“Rating Date” means the earlier of (1) the consummation of a Change of
Control, and (2) public announcement of the occurrence of a Change of Control or of the intention of the Company to effect a Change of Control.
“Rating Decline” means the decrease in the rating of a series of Notes by
two or more Rating Agencies by one or more gradations (including gradations within rating categories as well as between rating categories) from its rating on the Rating Date, or the withdrawal of a rating of a series of Notes by two or more
Rating Agencies, in each case on, or within 60 days after, the Rating Date (which period shall be extended so long as the rating of such series of Notes is under publicly announced consideration by any of the Rating Agencies); provided that such Rating Agencies have confirmed that such decrease in or withdrawal of rating is a result of the Change of Control, and provided, further, that no Rating
Decline shall occur if following such decrease in rating, (x) the senior unsecured rating assigned to the Company by at least two Rating Agencies is Investment Grade or (y) the ratings of the Notes of such series by at least two Rating Agencies
are equal to or better than their respective ratings on the Issue Date.
If no Rating Agency announces an action with regard to its rating of the Notes after the occurrence of a Change of Control, the Company shall
request each Rating Agency to confirm its rating of the Notes before the end of such 60-day period.
“record date” has the meaning set forth in Section 2.4.
“Redemption Date” when used with respect to any Notes to be redeemed, means the date fixed for such redemption pursuant to this Supplemental Indenture.
“Reset Date” means a Series A Reset Date or a Series B Reset Date, as applicable.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Series A Reset Date or First Series B Reset Date, as applicable, to, but excluding, the next following
Series A Reset Date or Series B Reset Date, as applicable, and thereafter each period from and including a Series A Reset Date or Series B Reset Date, as applicable, to, but excluding, the next following Series A Reset Date or Series B Reset
Date, respectively.
“S&P” means S&P Global Ratings (a division of S&P Global,
Inc.) or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
7
“Senior Indebtedness” means (i) with respect to the Company and the Notes, all Indebtedness of the Company and (ii) with respect
to the Guarantor and the Guarantee, all Indebtedness of the Guarantor, in each case whether outstanding as of the date of the Subordinated Indenture or thereafter created, incurred or assumed, unless, by the terms of the instrument creating or
evidencing such Indebtedness or pursuant to which such Indebtedness is outstanding, it is provided that such Indebtedness is not superior in right of payment to the Notes, in the case of the Company, or the Guarantee, in the case of the
Guarantor, or to other Indebtedness that is pari passu with or subordinated to the Notes, in the case of the Company, or the Guarantee, in the case of the Guarantor, and includes any modification, refunding, deferral, renewal or extension of
any such Indebtedness and any securities, notes or other evidences of Indebtedness issued in exchange for such Indebtedness; provided that “Senior Indebtedness” does not
include (a) Indebtedness of the Company or the Guarantor owed or owing to any subsidiary or any officer, director or employee of the Guarantor, the Company or any of their respective subsidiaries, (b) Indebtedness to trade creditors or (c) any
liability for taxes owed or owing by the Company or the Guarantor.
“Series A Notes” has the meaning set forth in Section 2.1(a)(i).
“Series B Notes” has the meaning set forth in Section 2.1(a)(ii).
“Series A Reset Date” means the First Series A Reset Date, the five-year
anniversary of the First Series A Reset Date and each five-year anniversary subsequent to that.
“Series B Reset Date” means the First Series B Reset Date, the five-year
anniversary of the First Series B Reset Date and each five-year anniversary subsequent to that.
“Subordinated Indenture” has the meaning set forth in Preamble.
“Successor Company” has the meaning set forth in Section 6.1(a)(i)(B).
“Supplemental Indenture” has the meaning set forth in Preamble.
A “Tax Credit Event” means, with respect to a series of the Notes, if in
the reasonable determination of the Company, there exists a material risk, due to the Notes (considered on a standalone basis or together with other debt) having been issued, as part of an original issuance, to one or more “specified foreign
entities,” as defined in Section 7701(a)(51)(B) of the Code, that the Company or any of its affiliates would be unable to utilize or otherwise ineligible to claim any tax credits otherwise allowed under Section 38 of the Code.
“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such tax matters to the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in the laws or treaties of the United States or any political subdivisions or taxing authorities, or any regulations under such laws or treaties, (b) any judicial decision
or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement (including any notice or announcement of intent to issue or adopt any such administrative pronouncement, ruling, regulatory procedure or
regulation), (c) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to
an administrative action or judicial decision that differs from the theretofore generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, irrespective of the time or manner in which
such amendment, clarification or change is introduced or made known, or (d) any threatened challenge asserted in writing in connection with an audit of the Guarantor or any of its subsidiaries, or a publicly known threatened challenge asserted
in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the notes, which amendment, clarification, or change is effective, or which administrative action is taken or
which judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly known, in each case after September 10, 2026, there is more than an insubstantial risk that interest payable by us on the
applicable series of notes is not deductible, or within 90 days would not be deductible, in whole or in part, by us for United States federal income tax purposes.
“Trustee” has the meaning set forth in Preamble until a successor Trustee
shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Voting Stock” of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of Directors of such Person under ordinary circumstances.
8
ARTICLE 2
DESIGNATION OF THE NOTES
Section 2.1 Designation and
Principal Amount; Execution and Authentication.
(a) Pursuant to the terms hereof and
Section 2.01 of the Base Indenture, the Company hereby establishes (i) a series of Junior Subordinated Notes designated as the “7.000% Series A Junior Subordinated Notes due 2057” (the “Series A Notes”) and (ii) a series of Junior Subordinated Notes designated as the “7.250% Series B Junior Subordinated Notes due 2057” (the “Series
B Notes” and, together with the Series A Notes, the “Notes”), in each case, the principal amount of which to be issued shall be in accordance with Section 2.1(b) and the form and terms of which shall be as set forth hereinafter.
(b) The Trustee shall, upon receipt of
a Company Order, authenticate Notes for original issue under the Indenture, including any Additional Notes issued pursuant to Section 2.1(c) hereof. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Securities authorized for issuance by the Company pursuant to one or more Company Orders. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in the Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an affiliate of the Company.
(c) The Series A Notes shall be issued
in an initial aggregate principal amount of $850,000,000 and the Series B Notes shall be issued in an initial aggregate principal amount of $650,000,000. The Company shall be entitled, without the consent of the Holders, upon delivery of an
Officer’s Certificate, Opinion of Counsel and Company Order, to issue Additional Notes (in an unlimited amount) under the Indenture which shall have identical terms as the Initial Notes of the same series issued on the Issue Date, other than
with respect to the date of issuance, issue price, initial interest accrual date and initial interest payment date, provided that if any Additional Notes are not fungible with such Notes for U.S. federal income tax purposes, such Additional
Notes will have a separate CUSIP or other identifying number. The Initial Notes issued on the Issue Date and any Additional Notes of such series issued shall be treated as a single class for all purposes under the Indenture. No additional
Notes may be issued if an Event of Default has occurred and is continuing with respect to the Notes. With respect to any Additional Notes, the Company shall set forth in a resolution of its Board of Directors and an Officer’s Certificate, a
copy of each of which shall be delivered to the Trustee, or in one or more indentures supplemental hereto, the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture; and
(b) the issue price, the issue date, initial interest accrual date, initial interest payment date and the CUSIP number of such Additional Notes
or other identifying number.
Section 2.2 Form of the Notes.
(a) The Notes shall be issued in whole
in the form of one or more registered Global Securities (the “Global Notes”) substantially in the form attached in Exhibits A-1 and A-2, as applicable, hereto, which is
hereby incorporated in and expressly made a part of this Supplemental Indenture. However, to the extent any provision of the Notes conflicts with the express provisions of the Base Indenture, the provisions of the Notes shall govern and be
controlling, and, to the extent any provision of the Notes conflicts with the express provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall govern and be controlling. The Trustee’s certificate of
authentication for such Notes shall be substantially in the form required by Section 2.02 of the Base Indenture. Each Global Note shall bear the DTC Legend. DTC and the Trustee are hereby designated as the Depositary and the custodian,
respectively, for the Global Notes under the Subordinated Indenture.
9
(b) Notes initially issued in global
form shall be substantially in the form of (i) Exhibit A-1 attached hereto with respect to the Series A Notes, or (ii) Exhibit A-2 attached hereto with respect to the Series B Notes, as applicable (including, in each case, the Global Note
Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of (i) Exhibit A-1 attached hereto with respect to the Series A Notes, or
(ii) Exhibit A-2 attached hereto with respect to the Series B Notes, as applicable (but, in each case, without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note shall represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time as reflected in the records of the Trustee
and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. The Trustee’s records shall be noted to reflect the amount
of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby, in accordance with instructions given by the Holder thereof as required by Section 2.06 of the Base Indenture.
(c) Ownership of beneficial interests
in the Global Notes shall be limited to persons that have accounts with DTC or persons that may hold interests through such participants, including through Euroclear and Clearstream. Ownership of beneficial interests in the Global Notes and
transfers thereof shall be subject to restrictions on transfer and certification requirements as set forth in the Base Indenture. Participants and Indirect Participants shall have no rights under the Indenture or any Global Note with respect
to any Global Note held on their behalf by the Depository or by the Trustee as custodian for the Depository, and the Depository shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depository governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
(d) Transfers of beneficial interests in
the Global Notes between participants in DTC, participants in Euroclear or participants in Clearstream shall be effected by DTC, Euroclear or Clearstream pursuant to customary procedures and subject to the applicable rules and procedures
established by DTC, Euroclear or Clearstream and their respective participants.
Section 2.3 Maturity Date of the Notes. The Notes will mature on March 15, 2057 (the “Maturity Date”), subject to earlier redemption at the
Company’s option as set forth in Article 5.
Section 2.4 Interest on the Notes. The Series A Notes will bear interest (a) from and including September 24, 2026 to, but excluding March 15, 2032, at the rate of 7.000% per year and (b) from and including the First
Series A Reset Date, during each Reset Period, at a rate per year equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination Date plus a spread of 2.253%, to be reset on each Reset Date; provided, that the interest rate during any Reset Period will not reset below 7.000% (which equals the initial interest rate on the Series A Notes). The Series B Notes will bear interest (i) from and including September 24, 2026 to, but excluding the First Series
B Reset Date at the rate of 7.250% per year and (ii) from and including the First Series B Reset Date, during each Reset Period, at a rate per year equal to the Five-year U.S. Treasury Rate as of the most recent Reset Interest Determination
Date plus a spread of 2.296%, to be reset on each Series B Reset Date; provided, that the interest rate during any Reset Period will not reset below 7.250% (which equals the initial interest rate on the Series B Notes).
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. Subject to the Company’s right to defer interest
payments described in Article 4, the Interest Payment Dates on which such interest shall be payable on the Notes shall be March 15 and September 15 of each year (each an “Interest
Payment Date”), commencing on March 15, 2027. The record dates for the interest payable on the Notes on any Interest Payment Date shall be March 1 and September 1, as the case may be, next preceding such Interest Payment Date, whether
or not a Business Day. If interest payments are deferred or otherwise not paid, they will accrue and compound semi-annually until paid at an annual rate equal to the interest rate then applicable to the Notes, to the extent permitted by
Applicable Law (“Additional Interest”). The interest rate for each Reset Period will be determined by the Calculation Agent as of the applicable Reset Interest Determination
Date. The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Reset Period beginning on or after the First Series A Reset Date and First Series B Reset Date, as applicable, will be on file
at the Company’s principal offices, will be made available to any Holder or beneficial owner of Notes upon request and will be final and binding in the absence of manifest error. The applicable interest rate for each Reset Period will be
determined by the Calculation Agent, as of the applicable Reset Interest Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly
notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each paying agent of such interest rate (and the Trustee shall forward such notice to the Holders of the applicable Notes). The Calculation Agent’s
determination of any interest rate, and its calculation of the amount of interest for any Interest Payment Period beginning on or after the First Series A Reset Date and the First Series B Reset Date, as applicable, will be on file at the
Company’s principal offices, will be made available to any Holder or beneficial owner of the Notes upon request and will be final and binding in the absence of manifest error. The Trustee shall be entitled to conclusively rely on any
determination made by the Calculation Agent. In no event shall the Trustee be the Calculation Agent, nor shall the Trustee have any liability for such actions taken at the Calculation Agent’s direction or otherwise in connection with any such
determination by the Calculation Agent. If at any time no Calculation Agent shall be appointed as provided above, the Company shall act as the Calculation Agent.
10
If an Interest Payment Date, Redemption Date, or Maturity Date falls on a day that is not a
Business Day, payment will be made on the next succeeding Business Day with the same force and effect as if made on such payment date.
Section 2.5 Minimum Denominations. The Notes shall be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.6 No Sinking Fund. The Notes are not entitled to the benefit of any sinking fund.
Section 2.7 [Reserved].
Section 2.8 Paying Agent and Registrar. The Trustee is hereby appointed as initial Paying Agent and initial Registrar for the Notes. The place or places where the principal of, premium (if any) on and interest on the
Notes shall be payable shall be the Corporate Trust Office of the Trustee. Payments in respect of Global Notes (including principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts
specified by the Holder of such Notes. In all other cases, at the option of the Company, payment of interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the register of the Notes
maintained by the Registrar.
Section 2.9 Guarantee. The Guarantor will guarantee the Notes on a subordinated basis as set forth in Article 10 of the Base Indenture. The Guarantee shall be subordinate and junior in right of payment to all Senior
Indebtedness of the Guarantor.
Section 2.10 Other Terms of the Notes. The other terms of the Notes shall be as expressly set forth herein and in Exhibits A-1 and A-2 hereto.
ARTICLE 3
EVENTS OF DEFAULT
Section 6.01 of the Base Indenture is replaced in its entirety as follows:
Section 3.1 Events of Default. Each of the following is an “Event of Default” with respect to the Notes:
(a) default for 30 days in the payment
when due of interest on the Notes of such series (subject to the Company’s right to optionally defer interest payments as described above under “—Option to Defer Interest Payments”);
(b) default in payment when due of the
principal of, or premium, if any, on any such series of Notes;
11
(c) failure by the Company or the
Guarantor of such Securities to comply with any covenant in the Subordinated Indenture (other than a default specified in clause (a) or (b) above) for 90 days after written notice by the Trustee or Holders of at least 30% in principal amount
of the applicable series of Notes then outstanding; provided, that this clause (c) shall not apply to any such failure being contested in good faith by the Company or
the Guarantor;
(d) (i) a court of competent
jurisdiction (A) enters an order or decree under any Bankruptcy Law that is for relief against the Company or the Guarantor in an involuntary case; (B) appoints a custodian for all or substantially all of the property of the Company or the
Guarantor; or (C) orders the liquidation of the Company or the Guarantor and, in each of clauses (A), (B) or (C), the order, appointment or decree remains unstayed and in effect for at least 60 consecutive days; or (ii) the Company or the
Guarantor pursuant to or within the meaning of Bankruptcy Law (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of a custodian of it or for all
or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors; and
(e) the Guarantee related to the Notes
ceases to be in full force and effect (other than in accordance with the terms of such Guarantee) or the Guarantor denies or disaffirms its obligations under its Guarantee.
Section 6.02 of the Base Indenture is replaced in its entirety as follows:
Section 3.2 Acceleration. A default under one series of the Notes will not necessarily be a default under another series. The Trustee may withhold notice to the Holders of the Notes of any Default or Event of Default
(except in any payment on the Notes) if the Trustee in good faith considers it in the interest of the Holders of the Notes to do so. If an Event of Default for either series of the Notes occurs and is continuing, the Trustee or the Holders
of at least 30% in principal amount of the outstanding Notes of such series affected by the Default may declare the principal of and all accrued and unpaid interest on the Notes of such series to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization occurs, the principal of and accrued and unpaid interest on all outstanding Notes of the affected series will become immediately due and payable without any action on the
part of the Trustee or any Holder. The holders of a majority in principal amount of the outstanding Notes of such series affected by the Default may in some cases rescind this accelerated payment requirement.
Notwithstanding the above, upon the occurrence of an event of default under Section 3.1(c) above, neither the Trustee nor Holders of the Notes of
the applicable series will be entitled to declare payment on the principal amount of the Notes of the applicable series and any accrued interest thereon immediately due and payable. However, they may exercise other rights and remedies available
under the Subordinated Indenture upon the occurrence of an Event of Default.
ARTICLE 4
OPTION TO DEFER INTEREST PAYMENTS
Section 4.1 Option to Defer Interest Payments.
(a) So long as no Event of Default
with respect to the Notes has occurred and is continuing under the Subordinated Indenture, at its option, the Company may, on one or more occasions, defer payment of all or part of the current and accrued interest otherwise due on the Notes
for a period of up to 10 consecutive years (each period, commencing on the date that the first such interest payment would otherwise have been made, an “Optional Deferral Period”).
A deferral of interest payments may not end on a date other than an Interest Payment Date and may not extend beyond the Maturity Date, and the Company may not begin a new Optional Deferral Period and may not pay current interest on the Notes
until it has paid all accrued interest on the Notes from the previous Optional Deferral Period. Such accrued interest shall be payable to the persons in whose names the Notes are registered at the close of business on the record date next
preceding such Interest Payment Date. Any deferred interest on the Notes will accrue Additional Interest as provided for herein. Once the Company pays all deferred interest payments on the Notes, including any Additional Interest accrued on
the deferred interest, it shall be entitled to again defer interest payments on the Notes as described above, but not beyond the Maturity Date of the Notes.
12
(b) The Company shall give the Trustee
an Officer’s Certificate, notifying it of the Company’s election to begin, continue or end an Optional Deferral Period at least one Business Day before the record date for the next Interest Payment Date, which Officer’s Certificate shall
contain an instruction for the Trustee to forward such notice to the Holders of the applicable Notes. However, the Company’s failure to pay interest on any interest payment date will itself constitute the commencement or continuation of an
Optional Deferral Period with respect to the applicable Notes unless the Company pays such interest within five Business Days after the interest payment date, whether or not the Company provides a notice of deferral; provided that the Company shall provide the Trustee, promptly upon request, such notice of deferral or continuation of such deferral. In connection with the end of an
Optional Deferral Period, such Officer’s Certificate will (i) indicate the interest payment date on which the Company will pay the deferred interest; and (ii) state the total amount of interest (including deferred interest) to be paid on such
date.
(c) During a Series A Optional Deferral
Period or a Series B Optional Deferral Period, the Guarantor and the Company will not do any of the following:
(i) declare or pay any
dividends or distributions, or redeem, purchase, acquire, or make a liquidation payment on any Capital Stock of the Guarantor;
(ii) pay any principal of, or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor or the Company that rank equally with, or junior to, the notes in right of payment (including debt
securities of other series, such as the other series of the notes, issued under the Subordinated Indenture); or
(iii) make any payments
with respect to any guarantee by the Guarantor or the Company of indebtedness if the guarantee ranks equally with or junior to the notes in right of payment.
However, the foregoing restrictions will not apply to:
(i) purchases,
redemptions or other acquisitions of Capital Stock of the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, agents or consultants or a
stock purchase or dividend reinvestment plan, or the satisfaction of obligations of the Guarantor pursuant to any contract or security outstanding on the date that the payment of interest is deferred requiring the Guarantor to purchase,
redeem or acquire its Capital Stock;
(ii) any payment,
repayment, redemption, purchase, acquisition or declaration of dividend described in clause (i) above as a result of a reclassification of the Capital Stock of the Guarantor, or the exchange or conversion of all or a portion of one class or
series of the Guarantor’s Capital Stock for another class or series of Guarantor’s Capital Stock;
(iii) the purchase of
fractional interests in shares of Capital Stock of the Guarantor pursuant to the conversion or exchange provisions of the Capital Stock of the Guarantor or the security being converted or exchanged, or in connection with the settlement of
stock purchase contracts outstanding on the date that the payment of interest is deferred or in connection with any split, reclassification or similar transaction;
(iv) dividends or
distributions paid or made in Capital Stock of the Guarantor (or rights to acquire Capital Stock of the Guarantor), or repurchases, redemptions or acquisitions of Capital Stock in connection with the issuance or exchange of Capital Stock (or
of securities convertible into or exchangeable for shares of Capital Stock of the Guarantor) and distributions in connection with the settlement of stock purchase contracts outstanding on the date that the payment of interest is deferred;
(v) redemptions,
exchanges or repurchases of, or with respect to, any rights outstanding under a shareholder rights plan outstanding on the date that the payment of interest is deferred or the declaration or payment thereunder of a dividend or distribution of
or with respect to rights in the future;
(vi) payments on the
Notes, any trust preferred securities, subordinated debentures, junior subordinated debentures or junior subordinated notes, or any guarantees of any of the foregoing, in each case that rank equal in right of payment to the Notes, so long as
the amount of payments made on account of such securities or guarantees is paid on all such securities and guarantees then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities and
guarantees is then entitled if paid in full;
13
(vii) any payment of
deferred interest or principal on, or repayment, redemption or repurchase of, parity securities that, if not made, would cause the Guarantor or the Company to breach the terms of the instrument governing such parity securities;
(viii) any regularly
scheduled dividend or distribution payments declared prior to the date that the applicable Series A Optional Deferral Period or Series B Optional Deferral Period commences; or
(ix) for the avoidance
of doubt, the conversion of shares of convertible Capital Stock of the Guarantor, if any, in accordance with the terms of such convertible Capital Stock.
ARTICLE 5
OPTIONAL REDEMPTION BY THE COMPANY
Section 5.1 Optional Redemption. The Company shall have the option to redeem the Series A Notes or the Series B Notes, as applicable, pursuant to Article 3 of the Base Indenture:
(a) in whole or in part on one or more
occasions at a Redemption Price equal to 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date (i) on any day in the period commencing on the date falling 90 days prior to the
First Series A Reset Date or the First Series B Reset Date, as applicable, and ending on and including the First Series A Reset Date or the First Series B Reset Date, as applicable and (ii) after the First Series A Reset Date or the First
Series B Reset Date, as applicable, on any Interest Payment Date;
(b) in whole, but not in part, at a
Redemption Price equal to 100% of the principal amount of the applicable series, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Tax Event with
respect to such series;
(c) in whole, but not in part, at a
Redemption Price equal to 101% of the principal amount of the applicable series, plus accrued and unpaid interest to, but excluding, the redemption date, at any time following the occurrence and during the continuance of a Tax Credit Event
with respect to such series. A notice of redemption of the notes upon the occurrence of a Tax Credit Event (i) may only be sent by the later of (A) the end of the calendar year in which the notes were issued and (B) six months from the date
of issuance of the notes and (ii) shall be accompanied by an Officer’s Certificate from the Company stating that a Tax Credit Event has occurred;
(d) in whole, but not in part, at a
Redemption Price equal to 102% of the principal amount of the applicable series, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Rating Agency Event
with respect to such series;
(e) subject to the paragraph that
follows, in whole, but not in part, at a Redemption Price equal to 101% of the principal amount of the applicable series, plus accrued and unpaid interest to, but excluding, the Redemption Date (a “Change of Control Payment”), at any time following the occurrence of a Change of Control Triggering Event (a “Change of Control Redemption”).
14
Unless the Company has previously or concurrently given a notice of redemption to Holders of all outstanding Notes under any of Section 5.1(a),
(b), (c) or (d) of this Supplemental Indenture within 30 days following any Change of Control Triggering Event in respect of such Notes or, at the Company’s option, prior to any Change of Control Triggering Event, but after the public
announcement of the related Change of Control Triggering Event, the Company will send a notice to each Holder of such Notes (with a copy to the Trustee) describing the transaction or transactions that constitute or may constitute the Change of
Control Triggering Event and either the Company’s election not to redeem such Notes or the date of the Change of Control Payment (the “Change of Control Payment Date”). The
notice of redemption shall, if sent prior to the occurrence of the Change of Control Triggering Event, state that the Change of Control Redemption is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of
Control Payment Date specified in the notice. If no Change of Control Redemption is made by the Company within the time periods specified in this paragraph following a Change of Control Triggering Event with respect to such series of Notes and
the Company has not otherwise given a notice of redemption to holders of all outstanding Notes of such series pursuant to the terms of any of Section 5.1(a), (b), (c) or (d) of this Supplemental Indenture the per annum rate of interest payable on
such series of Notes will be increased by an additional 5.0 percentage points from and including the date on which the applicable notice of a Change of Control Triggering Event is sent to Holders, and the Company shall send a notice to the
Trustee and the Paying Agent (in the form of an Officer’s Certificate), notifying it of such increase and of the amount of interest payable on the next interest payment date. Unless and until the Trustee and the Paying Agent receive such notice,
they may conclusively assume no change has been made to the interest rate.
On and after a Change of Control Payment Date, interest will cease to accrue on such series of Notes called for redemption (unless the Company
defaults in the payment of the redemption price and accrued interest). On or before the Change of Control Payment Date, the Company shall deposit with the Trustee money sufficient to pay the Redemption Price of and accrued and unpaid interest to
the redemption date of such Notes; provided that any installment of interest due and payable on an interest payment date that is also the redemption date shall be paid in accordance with
Section 5.2 hereof.
Section 5.2 Payments of Interest. Notwithstanding any statement in Article 5 to the contrary, installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a
Redemption Date will be payable on that Interest Payment Date to the Holders as of the close of business on the relevant record date according to the terms of the Notes and the Subordinated Indenture, except that, if the Redemption Date falls
on any day during an Optional Deferral Period, accrued and unpaid interest on such Notes will be paid on such Redemption Date to the persons entitled to receive the Redemption Price of such Notes. For the avoidance of doubt, the Interest
Payment Date falling immediately after the last day of an Optional Deferral Period will not be deemed to fall on a day during such Optional Deferral Period.
Section 5.3 Notice of Redemption. Notice of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more
than 60 days before the Redemption Date to each Holder of such series of Notes to be redeemed (with a copy to the Trustee). If, at the time a notice of redemption is given, the Company has not effected satisfaction and discharge in
accordance with Section 11.01 of the Base Indenture or covenant defeasance or legal defeasance of the Notes in accordance with Section 8.02 or 8.03 of the Base Indenture, as applicable, and such notice of redemption is not being given in
connection with or in order to effect satisfaction and discharge, covenant defeasance or legal defeasance of the Notes, then, if the notice of redemption so provides and at the Company’s option, the redemption may be subject to the condition
that the Trustee shall have received, on or before the applicable Redemption Date, monies in an amount sufficient to pay the Redemption Price and accrued and unpaid interest on the Notes called for redemption to, but excluding, the Redemption
Date. If monies in such amount are not received by the Trustee on or before such Redemption Date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled
and the Company shall not be required to redeem the Notes called for redemption on such Redemption Date. In the event that a redemption is canceled, the Company will, not later than the Business Day immediately following the proposed
Redemption Date, deliver, or cause to be delivered, notice of such cancellation to the Holders of the Notes called for redemption (which notice will also indicate that any Notes or portions thereof surrendered for redemption will be returned
to the applicable Holders), and the Company will direct the Trustee to, and the Company will cause the prompt return of any Notes or portions thereof that have been surrendered for redemption to the applicable Holders.
Unless the Company or the Guarantor defaults in payment of the Redemption Price or the proposed redemption is rescinded, on and after the Redemption Date interest
will cease to accrue on the Notes or portions thereof called for redemption. No Notes of a principal amount of $2,000 or less will be redeemed in part.
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Trustee
shall have no duty to calculate or confirm the Redemption Price. If less than all of the Notes of a given series are to be redeemed on any Redemption Date, the particular Notes (or portions thereof) to be redeemed shall be selected on a pro rata
basis (or, in the case of Notes in book-entry form represented by one or more Global Notes, pursuant to the applicable depositary procedures). No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be
redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the Note will be issued in the
name of the Holder of the Note upon surrender for cancellation of the original note. For so long as the notes are held by DTC, the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.
15
ARTICLE 6
SUCCESSORS
Section 6.1 Merger, Consolidation or Sale of Assets.
(a) The Company and the Guarantor may
not: (i) consolidate or merge with or into another Person (whether or not the Company or the Guarantor is the surviving corporation); or (ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Subsidiaries or the Guarantor and its Subsidiaries, taken as a whole, as the case may be, in one or more related transactions, to another Person; unless:
(i) either:
(A) the Company or the Guarantor, as
the case may be, is the surviving entity; or
(B) the Person
formed by or surviving any such consolidation or merger (if other than the Company or the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor
Company (if other than the Company or the Guarantor) assumes all the Obligations of the Company or the Guarantor, as the case may be, under this Supplemental Indenture and the Securities pursuant to a Supplemental Indenture; and
(iii) immediately
after such transaction, no Event of Default exists.
(b) This Section 6.1 will not apply
to:
(i) a merger,
amalgamation or consolidation solely for the purpose of reincorporating or reorganizing the Company or the Guarantor in another jurisdiction or forming a direct or indirect holding company of the Company or the Guarantor; and
(ii) any sale, transfer,
assignment, conveyance, lease or other disposition of assets between or among the Company, the Guarantor and their respective Subsidiaries, including by way of merger or consolidation.
Section 6.2 Successor Company Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its
Subsidiaries or the Guarantor and its Subsidiaries, taken as a whole, as the case may be, in a transaction that is subject to, and that complies with the provisions of, Section 6.1 hereof, the Successor Company shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger, sale, lease, assignment, transfer, conveyance or other disposition, the provisions of this Supplemental Indenture referring to the “Company” or the “Guarantor”
shall refer instead to the Successor Company and not to the Company or the Guarantor, as the case may be), and may exercise every right and power of the Company or the Guarantor, as the case may be, under the Subordinated Indenture with the
same effect as if the Successor Company had been named as the Company or the Guarantor, as the case may be, herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, interest,
premium (if any) on the Notes except in the case of a sale of all of the Company’s or the Guarantor’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.1 hereof.
16
ARTICLE 7
MISCELLANEOUS
Section 7.1 Execution and Delivery. This Supplemental Indenture shall be effective upon execution by the parties hereto.
Section 7.2 Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Base Indenture is in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect and the Company, the Guarantor and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
This Supplemental Indenture shall form a part of the Base Indenture in the manner and to the extent herein and therein provided. The Trustee accepts the amendment of the Base Indenture effected by this Supplemental Indenture as hereby
amended, but only upon the terms and conditions set forth in the Base Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee in the performance of the trust created by the Base
Indenture.
Section 7.3 Tax Treatment. Each Holder will, by accepting the Notes or a beneficial interest therein, be deemed to have agreed that the Holder intends that the Notes constitute debt and will treat the Notes as debt
for United States federal, state and local tax purposes.
Section 7.4 Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 7.5 Governing Law. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CONTRARY CONFLICT OF LAWS OR CHOICE OF LAW PROVISIONS OF THE LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION.
Section 7.6 Waiver of Jury Trial. EACH OF THE PARTIES HERETO (AND THE HOLDERS, BY THEIR ACCEPTANCE OF THE NOTES, THEREBY) 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 THE INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.7 Execution in Counterparts; Electronic Signatures. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by PDF or other electronic 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 Indenture for all purposes. Signatures of the parties hereto transmitted by PDF or other electronic means shall be
deemed to be their original signatures for all purposes. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature
provider as specified in writing to the Trustee by the authorized representative), in English). The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to
the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
17
Section 7.8 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 7.9 Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of (a) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (b) the
recitals contained herein, all of which recitals are made solely by the Company and the Guarantor, (c) the proper authorization hereof by the Company and the Guarantor, (d) the due execution hereof by the Company and the Guarantor or (e) the
consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
[Signature page follows]
18
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.
|
VISTRA OPERATIONS COMPANY LLC
|
||
| By: |
/s/ William M. Quinn
|
|
|
Name: William M. Quinn
|
||
|
Title: Senior Vice President and Treasurer
|
||
|
VISTRA CORP.
|
||
| By: |
/s/ William M. Quinn
|
|
|
Name: William M. Quinn
|
||
|
Title: Senior Vice President and Treasurer
|
||
|
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
|
||
| By: |
/s/ Arlene Thelwell
|
|
|
Name: Arlene Thelwell
|
||
|
Title: Vice President
|
||
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW YORK CORPORATION (“DTC”), SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
VISTRA OPERATIONS COMPANY LLC
7.000% SERIES A JUNIOR SUBORDINATED NOTES DUE 2057
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
VISTRA CORP.
CUSIP No. 92840V BE1
ISIN No. US92840VBE11
No.___________ $_____________
Vistra Operations Company LLC, a Delaware limited liability company (the “Company,” which term includes any successor Person under the Subordinated Indenture
hereinafter referred to), for value received, promises to pay to ____________ or registered assigns, the principal sum of ______________________ Dollars[, or such greater or lesser amount as indicated on the Schedule of Exchanges of Securities
hereto,]2 on March 15, 2057 (the “Maturity Date”), and to pay interest thereon from and including September 24, 2026 (the “Original Issue Date”) or from the most recent date to which interest has been paid or duly provided for,
semi-annually in arrears on March 15 and September 15 of each year (each, an “Interest Payment Date”), commencing March 15, 2027 (subject to the right of the Company to defer the payment of interest, but not beyond the Maturity Date, in
accordance with the provisions set forth below), and on the Maturity Date (i) from and including the Original Issue Date to but excluding March 15, 2032 (the “First Series A Reset Date”), at the rate of 7.000% per annum and (ii) from and
including the First Series A Reset Date, during each Reset Period (as defined below) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined below) as of the most recent Reset Interest Determination Date (as defined below) plus
a spread of 2.253%, to be reset on each Series A Reset Date (as defined below), until the principal hereof is paid or made available for payment; provided, that the interest rate during any Reset Period will not reset below 7.000%. The Company
shall pay interest on overdue principal and premium (if any) from time to time at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from
time to time at the same rate to the extent lawful. Interest on this Security (as defined on the reverse hereof) shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
1 To be included only if the Security is a Global Security
2 To be included only if the Security is a Global Security
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Subordinated Indenture, be paid to the Person
in whose name this Security is registered at the close of business on the record date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day (as defined in the Subordinated Indenture), as the case may be,
immediately preceding such Interest Payment Date (each, a “Record Date”). The Holder (as defined in the Subordinated Indenture) must surrender this Security to a Paying Agent (as defined in the Subordinated Indenture) to collect principal
payments. The Company shall pay the principal of, premium (if any) on and interest on the Securities in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Such amounts shall
be payable at the offices of the Trustee (as defined on the reverse hereof), provided that at the option of the Company, the Company may pay such amounts (1) by wire transfer with respect to Global Securities (as defined in the Subordinated
Indenture) or (2) by check payable in such money mailed to a Holder’s registered address with respect to any Securities.
If an Interest Payment Date, Redemption Date (as defined in the Subordinated Indenture) or the Stated Maturity (as defined in the Subordinated Indenture) of the
Securities falls on a day that is not a Business Day, the payment of interest and principal will be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the Interest Payment Date,
redemption date or the Stated Maturity, as applicable.
The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination
Date, in accordance with the following provisions:
“Calculation Agent” means, at any time, the entity appointed by the Company and serving as such agent with respect to the Securities at such time. Unless the Company
has validly called all of the outstanding Securities for redemption on a Redemption Date occurring prior to the First Series A Reset Date, the Company will appoint a Calculation Agent for the Securities prior to the Reset Interest Determination
Date immediately preceding the First Series A Reset Date; provided that, if the Company has called all of the outstanding Securities for redemption on a Redemption Date occurring prior to the First Series A Reset Date but the Company does not
redeem all of the outstanding Securities on such Redemption Date, the Company will appoint a Calculation Agent for the Securities as promptly as practicable after such proposed Redemption Date. The Company may terminate any such appointment and
may appoint a successor Calculation Agent at any time and from time to time (so long as there will always be a Calculation Agent in respect of the Securities when so required). The Company may appoint itself or the Guarantor (as defined on the
reverse hereof) or one of their respective affiliates as Calculation Agent.
“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate
equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive
Business Days immediately prior to the respective Reset Interest Determination Date as published under the heading “Treasury Constant Maturities” in the most recent H.15 as of 5:00 p.m. (Eastern Time), or (ii) if there is no such published U.S.
Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two
series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date,
and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset
Interest Determination Date as published under the heading “Treasury Constant Maturities” in the most recent H.15 as of 5:00 p.m. (Eastern Time). If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause
(i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date
preceding the First Series A Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Series A Reset Date will be deemed to be 7.000% per year.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any
successor thereto).
The “most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“Reset Date” means a Series A Reset Date.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Series A Reset Date to, but excluding, the next following Series A Reset Date, and thereafter each period
from and including a Series A Reset Date to, but excluding, the next following Series A Reset Date.
“Series A Reset Date” means the First Series A Reset Date, the five-year anniversary of the First Series A Reset Date and each five-year anniversary subsequent to that.
As provided above, the interest rate for each Reset Period will be determined by the Calculation Agent as of the applicable Reset Interest Determination Date. Promptly
upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying
Agent of such interest rate (and the Trustee shall forward such notice to the Holders of the Securities). The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Reset Period beginning on
or after the First Series A Reset Date will be on file at the Company’s principal offices, will be made available to any Holder or Beneficial Owner of Securities upon request and will be final and binding in the absence of manifest error. The
Trustee shall be entitled to conclusively rely on any determination made by the Calculation Agent. In no event shall the Trustee be the Calculation Agent, nor shall the Trustee have any liability for such actions taken at the Calculation Agent’s
direction or otherwise in connection with any such determination by the Calculation Agent. If at any time no Calculation Agent shall be appointed as provided above, the Company shall act as the Calculation Agent.
So long as there is no Event of Default with respect to the Securities under the Subordinated Indenture, the Company, at its option, may, on one or more occasions,
defer payment of all or part of the current and accrued interest otherwise due on the Securities for a period of up to 10 consecutive years (each period, commencing on the date that the first such interest payment would otherwise have been made,
a “Series A Optional Deferral Period” or an “Optional Deferral Period”). A deferral of interest payments may not end on a date other than an Interest Payment Date and may not extend beyond the Maturity Date, and the Company may not begin a new
Series A Optional Deferral Period and may not pay current interest on the Securities until it has paid all accrued interest on the Securities from the previous Series A Optional Deferral Period. Such accrued interest shall be payable to the
persons in whose names the Securities are registered at the close of business on the Record Date next preceding such Interest Payment Date.
Any deferred interest on the Securities will accrue additional interest at a rate equal to the interest rate then applicable to the Securities to the extent permitted
by applicable law. Once the Company pays all deferred interest payments on the Securities, including any additional interest accrued on the deferred interest, it shall be entitled to again defer interest payments on the Securities as described
above, but not beyond the Maturity Date of the Securities.
The Company shall give the Trustee an officer’s certificate, notifying it of its election to begin, continue or end a Series A Optional Deferral Period at least one
Business Day before the Record Date for the next Interest Payment Date, which officer’s certificate shall contain an instruction for the Trustee to forward such notice to the Holders of the Securities. However, the Company’s failure to pay
interest on any Interest Payment Date will itself constitute the commencement or continuation of a Series A Optional Deferral Period unless the Company pays such interest within five Business Days after the Interest Payment Date, whether or not
the Company provides a notice of deferral; provided that the Company shall provide the Trustee, promptly upon request, such notice of deferral or continuation of such deferral. In connection with the end of a Series A Optional Deferral Period,
such officer’s certificate will (1) indicate the interest payment date on which the Company will pay the deferred interest; and (2) state the total amount of interest (including deferred interest) to be paid on such date.
During an Optional Deferral Period, the Guarantor and the Company will not do any of the following:
(i) declare or pay any dividends or distributions, or redeem,
purchase, acquire, or make a liquidation payment on any Capital Stock of the Guarantor;
(ii) pay any principal of, or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Guarantor or the Company that rank equally with, or junior to, the Securities in right of payment (including debt securities of other series, such as the Company’s 7.250% Series B
Junior Subordinated Notes due 2057 issued under the Subordinated Indenture); or
(iii) make any payments with respect to any guarantee by the
Guarantor or the Company of indebtedness if the guarantee ranks equally with or junior to the Securities in right of payment.
However, the foregoing restrictions will not apply to:
(a) purchases, redemptions or other acquisitions of Capital
Stock of the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, agents or consultants or a stock purchase or dividend reinvestment plan,
or the satisfaction of obligations of the Guarantor pursuant to any contract or security outstanding on the date that the payment of interest is deferred requiring the Guarantor to purchase, redeem or acquire its Capital Stock;
(b) any payment, repayment, redemption, purchase, acquisition
or declaration of dividend described in clause (i) above as a result of a reclassification of the Capital Stock the Guarantor, or the exchange or conversion of all or a portion of one class or series of the Guarantor’s Capital Stock for
another class or series of the Guarantor’s Capital Stock;
(c) the purchase of fractional interests in shares of Capital
Stock of the Guarantor pursuant to the conversion or exchange provisions of the Capital Stock of the Guarantor or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts outstanding on the
date that the payment of interest is deferred or in connection with any split, reclassification or similar transaction;
(d) dividends or distributions paid or made in Capital Stock
of the Guarantor (or rights to acquire Capital Stock of the Guarantor), or repurchases, redemptions or acquisitions of Capital Stock in connection with the issuance or exchange of Capital Stock (or of securities convertible into or
exchangeable for shares of Capital Stock of the Guarantor) and distributions in connection with the settlement of stock purchase contracts outstanding on the date that the payment of interest is deferred;
(e) redemptions, exchanges or repurchases of, or with respect
to, any rights outstanding under a shareholder rights plan outstanding on the date that the payment of interest is deferred or the declaration or payment thereunder of a dividend or distribution of or with respect to rights in the future;
(f) payments on the Securities, any trust preferred
securities, subordinated debentures, junior subordinated debentures or junior subordinated notes, or any guarantees of any of the foregoing, in each case that rank equal in right of payment to the Securities, so long as the amount of payments
made on account of such securities or guarantees is paid on all such securities and guarantees then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities and guarantees is then entitled if
paid in full;
(g) any payment of deferred interest or principal on, or
repayment, redemption or repurchase of, parity securities that, if not made, would cause the Guarantor or the Company to breach the terms of the instrument governing such parity securities;
(h) any regularly scheduled dividend or distribution payments
declared prior to the date that the applicable Series A Optional Deferral Period commences; or
(i) for the avoidance of doubt, the conversion of shares of
convertible capital stock of the Guarantor, if any, in accordance with the terms of such convertible Capital Stock.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by its duly authorized officers.
Dated:
|
VISTRA OPERATIONS COMPANY LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
GUARANTEE
Vistra Corp., a Delaware corporation, unconditionally and irrevocably guarantees to the holder of this Security, upon the terms and subject to the conditions set forth
in the Subordinated Indenture referenced on the reverse hereof, (a) the full and prompt payment of the principal of and any premium on this Security when and as the same shall become due, whether at the stated maturity thereof, by acceleration,
redemption or otherwise, and (b) the full and prompt payment of interest on this Security when and as the same shall become due, subject to any applicable grace period.
|
VISTRA CORP.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Certificate of Authentication:
This is one of the Securities of the series designated therein referred to in the within-mentioned Subordinated Indenture.
|
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
|
||
|
By:
|
||
|
Authorized Signatory
|
||
|
Dated:
|
[FORM OF REVERSE OF SECURITY]
VISTRA OPERATIONS COMPANY LLC
7.000% SERIES A JUNIOR SUBORDINATED NOTES DUE 2057
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
VISTRA CORP.
This Security is one of a duly authorized issue of 7.000% Series A Junior Subordinated Notes due 2057 (the “Securities”) of Vistra Operations Company LLC, a Delaware
limited liability company (the “Company”).
1. Paying Agent and Registrar. Initially, Wilmington Trust, National Association (the “Trustee”), the trustee under the Subordinated Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to any Holder. The Company, the Guarantor or any Subsidiary of the Company may act in any such capacity.
2. Guarantee. Vistra Corp., a Delaware corporation (the “Guarantor”), unconditionally and irrevocably guarantees to the Holders from time to time of the Securities,
upon the terms and subject to the conditions set forth in the Subordinated Indenture (as defined below), (a) the full and prompt payment of the principal of and any premium on the Securities when and as the same shall become due, whether at the
Stated Maturity thereof, by acceleration, redemption or otherwise, and (b) the full and prompt payment of any interest on the Securities when and as the same shall become due, subject to any applicable grace period. The Guarantee constitutes a
guarantee of payment and not of collection. In the event of a default in the payment of principal of or any premium on the Securities when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for
redemption or otherwise, or in the event of a default in the payment of any interest on the Securities when and as the same shall become due, subject to any applicable grace period, each of the Trustee and the Holders of the Securities shall have
the right to proceed first and directly against the Guarantor under the Subordinated Indenture without first proceeding against the Company or exhausting any other remedies which the Trustee or such Holder may have and without resorting to any
other security held by it.
3. Subordinated Indenture. The Company issued the Securities under a Subordinated Indenture, dated as of September 24, 2026 (the “Base Indenture”), among the Company,
the Guarantor and the Trustee, as supplemented by the First Supplemental Indenture, dated as of September 24, 2026 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Subordinated Indenture”), among the Company, the
Guarantor and the Trustee. The terms of the Securities include those stated in the Subordinated Indenture and those made part of the Subordinated Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”), as in effect on
the date of execution of the Subordinated Indenture. The Securities are subject to all such terms, and Holders are referred to the Subordinated Indenture and the TIA for a statement of such terms and for the definitions of capitalized terms used
but not defined herein. The Securities are subordinated, unsecured obligations of the Company limited to $850,000,000 in aggregate principal amount; provided, however, that the authorized aggregate principal amount of the Securities may be
increased before or after the issuance of any Securities by a Board Resolution (or action pursuant to a Board Resolution) to such effect; provided, however, that if the additional Securities are not fungible with the original Securities for U.S.
federal income tax purposes, those additional Securities will have a different CUSIP, ISIN, or other identifying number so that they are distinguishable from the original Securities. The Subordinated Indenture provides for the issuance of other
series of debt securities (including the Securities, the “Debt Securities”) thereunder.
4. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in minimum denominations of $2,000 and any integral multiples of $1,000
above such amount. The transfer of Securities may be registered and Securities may be exchanged as provided in the Subordinated Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or permitted by the Subordinated Indenture. Neither the Company, the Trustee nor the Registrar shall be required to register the transfer or exchange of (a) any Security
selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (b) any Security during the period beginning 15 Business Days before the mailing of notice of redemption of Securities to be
redeemed and ending at the close of business on the day of mailing.
5. Persons Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
6. Optional Redemption. The Company shall have the option to redeem the Securities pursuant to Article III of the Subordinated Indenture:
(i) in whole or in part on one or more occasions at a
Redemption Price equal to 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date (a) on any day in the period commencing on the date falling 90 days prior to the First Series A
Reset Date and ending on and including the First Series A Reset Date and (b) after the First Series A Reset Date, on any Interest Payment Date;
(ii) in whole, but not in part, at a Redemption Price equal
to 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Tax Event (as defined below);
(iii) in whole, but not in part, at a Redemption Price equal
to 101% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Tax Credit Event (as defined below); it being
understood that a notice of redemption of the Securities upon the occurrence of a Tax Credit Event (i) may only be sent by the later of (a) the end of the calendar year in which the Securities were issued and (b) six months from the date of
issuance of the Securities and (ii) shall be accompanied by an officer’s certificate from the Company stating that a Tax Credit Event has occurred;
(iv) in whole, but not in part, at a Redemption Price equal to
102% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below); and
(v) subject to the paragraph that follows, in whole, but not
in part, at a Redemption Price equal to 101% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence of a Change of Control Triggering Event (a
“Change of Control Redemption”).
Unless the Company has previously or concurrently given a redemption notice to Holders of all outstanding Securities pursuant to any of clauses (i), (ii), (iii) or (iv)
above, within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control Triggering Event, but after the public announcement of the related Change of Control, the Company will send a
notice to each Holder of the Securities (with a copy to the Trustee) describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and either the Company’s election not to redeem the
Securities or the date of the Change of Control Payment (the “Change of Control Payment Date”). The notice shall, if sent prior to the occurrence of the Change of Control Triggering Event, state that the Change of Control Redemption is
conditioned on the Change of Control Triggering Event occurring on or prior to the redemption date specified in the notice. If no Change of Control Redemption is made by the Company within the time periods specified in this clause following a
Change of Control Triggering Event and the Company has not otherwise given a redemption notice to Holders of all outstanding Securities pursuant to any of clauses (i), (ii), (iii) or (iv) above, the per annum rate of interest payable on the
Securities will be increased by an additional 5.0 percentage points from and including the date on which the applicable notice of a Change of Control Triggering Event is sent to holders and the Company shall send a notice to the Trustee and the
Paying Agent (in the form of an Officer’s Certificate), notifying it of such increase and of the amount of interest payable on the next Interest Payment Date. Unless and until the Trustee and the Paying Agent receive such notice, they may
conclusively assume no change has been made to the interest rate.
On and after a Change of Control Payment Date, interest will cease to accrue on the Securities called for redemption (unless the Company defaults in the payment of the
redemption price and accrued interest). On or before the Change of Control Payment Date, the Company will deposit with the Trustee money sufficient to pay the Redemption Price of and accrued and unpaid interest to the Redemption Date of such
Securities; provided that any installment of interest due and payable on an Interest Payment Date that is also the Redemption Date shall be paid in accordance with the provisions set forth below.
“Attributable Debt” means, in respect of a sale and leaseback transaction, at the time of determination, the present value of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capitalized Lease Obligation, the amount
of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “Beneficially Owns,” “Beneficially Owned” and
“Beneficial Ownership” have a corresponding meaning.
“Board of Directors” means: (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of
such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members
thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day other than a Saturday, a Sunday or a day on which banking institutions in New York City (and, with respect to payments, in the place of
payment) are authorized or required by law to remain closed.
“Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Capitalized Lease Obligations” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet in accordance with GAAP, and the maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by
the lessee without payment of a penalty.
“Change of Control” means the occurrence of any of the following after the Issue Date:
(1) the sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Guarantor and its subsidiaries, taken as a whole, to any “person” (as that term is used
in Section 13(d) of the Exchange Act), but excluding any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan; or
(2) The Guarantor becomes aware of (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person”
(as defined above), other than (x) any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, (y) any one or more
parents of the Guarantor in which no “person” directly or indirectly, holds beneficial ownership of Voting Stock representing more than 50% of the aggregate voting power represented by the issued and outstanding Voting Stock of such parent,
or (z) an entity owned directly or indirectly by the direct or indirect stockholders of the Guarantor in substantially the same proportion as their direct or indirect ownership of Voting Stock of the Guarantor prior to such transaction,
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Guarantor, measured by voting power rather than number of shares.
For the avoidance of doubt, for purposes of this definition, (i) a merger or consolidation of a subsidiary of the Guarantor into another subsidiary of Guarantor, or
(ii) a sale of a subsidiary of Guarantor to another person in a transaction not prohibited by the terms of the Subordinated Indenture will not be deemed to be a Change of Control.
Notwithstanding the preceding or any provision of Rule 13d-3 or 13d-5 under the Exchange Act, (i) a Person or “group” shall not be deemed to Beneficially Own securities
subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) a Person or “group”
will not be deemed to Beneficially Own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns more than 50% of the
total voting power of the Voting Stock of such parent entity, and (iii) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in
connection with the acquisition or disposition of Voting Stock will not cause a party to be a “Beneficial Owner.”
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in
effect from time to time; provided, however, that, if (i) any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the Issue Date, then, solely with
respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the Issue Date and (ii) if the Company notifies the Trustee that it desires to eliminate the effect of any change occurring after the Issue
Date in GAAP or in the application thereof on the operation of any provision of the Subordinated Indenture, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; or (2) (i) agreements or arrangements designed to protect such Person against fluctuations in currency
exchange, interest rates, commodity prices or commodity transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase and sale agreements, swaps, options and other
agreements, in each case, that fluctuate in value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for commercial or trading activities with respect to the purchase, transmission, distribution, sale, lease or
hedge of any energy related commodity or service.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables, except as provided in clause
(5) below), whether or not contingent: (1) in respect of borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (3) in respect of bankers’
acceptances; (4) representing Capitalized Lease Obligations or Attributable Debt in respect of sale and leaseback transactions; (5) representing the balance deferred and unpaid of the purchase price of any property (including trade payables) or
services due more than six months after such property is acquired or such services are completed; (6) representing the net amount owing under any Hedging Obligations; or (7) if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; provided, that the amount of such Indebtedness shall be deemed not to exceed the lesser of
the amount secured by such Lien and the value of the Person’s property securing such Lien.
“Investment Grade” in respect of the Securities means a rating of: (a) Baa3 or better by Moody’s; (b) BBB- or better by Fitch; or (c) BBB- or better from S&P (or
the equivalent of such rating by such rating organization or, if no rating of Moody’s, Fitch or S&P exists, the equivalent of such rating by any other Nationally Recognized Statistical Rating Organization selected by the Company as a
replacement agency).
“Issue Date” means September 24, 2026.
“Lien” means, with respect to any asset, any mortgage, pledge, security interest, hypothecation, collateral assignment, lien (statutory or other) or similar encumbrance
(including any conditional sale or other title retention agreement or any lease or license in the nature thereof); provided that in no event shall an operating lease be deemed to be a Lien.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the
Exchange Act.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company
or government or other entity of any kind.
“Place of Payment” means the place or places where the principal of, premium (if any) and interest on the Securities are payable as specified in accordance with the
Subordinated Indenture.
“Rating Agencies” means (1) Moody’s, (2) Fitch, (3) S&P and (4) if any of Moody’s, Fitch or S&P shall not make a rating of the Securities available, a
Nationally Recognized Statistical Rating Organization selected by the Company which shall be substituted for Moody’s, Fitch or S&P, as the case may be, with respect to the Securities.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating
organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Guarantor or the Company (together with any successor thereto, a
“rating agency”) in assigning equity credit to securities such as the Securities, (a) as such methodology was in effect on September 10, 2026, in the case of any rating agency that published a rating for the Guarantor or the Company as of
September 10, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Guarantor or the Company, in the case of any rating agency that first publishes a rating for the Guarantor or the Company
after September 10, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Securities by such rating
agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Securities as of the date of such change, clarification or
amendment than the equity credit that would have been assigned to the Securities by such rating agency had the current methodology not been changed.
“Rating Date” means the earlier of (1) the consummation of a Change of Control, and (2) public announcement of the occurrence of a Change of Control or of the intention
of the Company to effect a Change of Control.
“Rating Decline” means the decrease in the rating of the Securities by two or more Rating Agencies by one or more gradations (including gradations within rating
categories as well as between rating categories) from its rating on the Rating Date, or the withdrawal of a rating of the Securities by two or more Rating Agencies, in each case on, or within 60 days after, the Rating Date (which period shall be
extended so long as the rating of the Securities is under publicly announced consideration by any of the Rating Agencies); provided that such Rating Agencies have confirmed that such decrease in or withdrawal of rating is a result of the Change
of Control, and provided, further, that no Rating Decline shall occur if following such decrease in rating, (x) the senior unsecured rating assigned to the Company by at least two Rating Agencies is Investment Grade or (y) the ratings of the
Securities by at least two Rating Agencies are equal to or better than their respective ratings on the Issue Date.
“S&P” means S&P Global Ratings (a division of S&P Global, Inc.) or any of its successors or assigns that is a Nationally Recognized Statistical Rating
Organization.
“Senior Indebtedness” means (i) with respect to the Company and the Securities, all Indebtedness of the Company and (ii) with respect to the Guarantor and the
Guarantee, all Indebtedness of the Guarantor, in each case whether outstanding as of the date of the Subordinated Indenture or thereafter created, incurred or assumed unless, by the terms of the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding, it is provided that such Indebtedness is not superior in right of payment to the Securities, in the case of the Company, or the Guarantee, in the case of the Guarantor, or to other
Indebtedness that is pari passu with or subordinated to the Securities, in the case of the Company, or the Guarantee, in the case of the Guarantor, and includes any modification, refunding, deferral, renewal or extension of any such Indebtedness
and any securities, notes or other evidences of Indebtedness issued in exchange for such Indebtedness; provided that “Senior Indebtedness” does not include (a) Indebtedness of the Company or the Guarantor owed or owing to any subsidiary or any
officer, director or employee of the Company, the Guarantor or any of their respective subsidiaries, (b) Indebtedness to trade creditors or (c) any liability for taxes owed or owing by the Company or the Guarantor.
“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such tax matters to the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in the laws or treaties of the United States or any political subdivisions or taxing authorities, or any regulations under such laws or treaties, (b) any judicial decision
or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement (including any notice or announcement of intent to issue or adopt any such administrative pronouncement, ruling, regulatory procedure or
regulation), (c) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an
administrative action or judicial decision that differs from the theretofore generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, irrespective of the time or manner in which such
amendment, clarification or change is introduced or made known, or (d) threatened challenge asserted in writing in connection with an audit of the Guarantor or any of its subsidiaries, or a publicly-known threatened challenge asserted in writing
against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Securities, which amendment, clarification, or change is effective, or which administrative action is taken or which
judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known, in each case after September 10, 2026, there is more than an insubstantial risk that interest payable by the Company on
the Securities is not deductible, or within 90 days would not be deductible, in whole or in part, by the Company for United States federal income tax purposes.
“Tax Credit Event” means, with respect to the Securities, if in the reasonable determination of the Company, there exists a material risk, due to the Securities
(considered on a standalone basis or together with other debt) having been issued, as part of an original issuance, to one or more “specified foreign entities,” as defined in Section 7701(a)(51)(B) of the Internal Revenue Code of 1986, as amended
(the “Code”), that the Company or any of its affiliates would be unable to utilize or otherwise ineligible to claim any tax credits otherwise allowed under Section 38 of the Code.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of
such Person under ordinary circumstances.
If no Rating Agency announces an action with regard to its rating of the Securities after the occurrence of a Change of Control, the Company shall request each Rating
Agency to confirm its rating of the Securities before the end of such 60-day period.
Installments of interest on the Securities that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date will be payable on that
Interest Payment Date to the Holders as of the close of business on the relevant Record Date according to the terms of the Securities and the Subordinated Indenture, except that, if the Redemption Date falls on any day during an Optional Deferral
Period, accrued and unpaid interest on such Securities will be paid on such Redemption Date to the persons entitled to receive the Redemption Price of such Securities. For the avoidance of doubt, the Interest Payment Date falling immediately
after the last day of an Optional Deferral Period will not be deemed to fall on a day during such Optional Deferral Period.
Notice of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days
but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed. If, at the time a notice of redemption is given, the Company has not effected satisfaction and discharge in accordance with Section 11.01 of the
Subordinated Indenture or covenant defeasance or legal defeasance of the Securities in accordance with Section 8.02 or 8.03 of the Subordinated Indenture, as applicable, and such notice of redemption is not being given in connection with or in
order to effect satisfaction and discharge, covenant defeasance or legal defeasance of the Securities, then, if the notice of redemption so provides and at the Company’s option, the redemption may be subject to the condition that the Trustee
shall have received, on or before the applicable Redemption Date, monies in an amount sufficient to pay the Redemption Price and accrued and unpaid interest on the Securities called for redemption to, but excluding, the Redemption Date. If monies
in such amount are not received by the Trustee on or before such Redemption Date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Company shall
not be required to redeem the Securities called for redemption on such Redemption Date. In the event that a redemption is canceled, the Company will, not later than the Business Day immediately following the proposed Redemption Date, deliver, or
cause to be delivered, notice of such cancellation to the Holders of the Securities called for redemption (which notice will also indicate that any Securities or portions thereof surrendered for redemption will be returned to the applicable
Holders), and the Company will direct the Trustee to, and the Company will cause the Trustee to, promptly return any Securities or portions thereof that have been surrendered for redemption to the applicable Holders.
Unless the Company or the Guarantor defaults in payment of the Redemption Price or the proposed redemption is rescinded, on and after the Redemption Date interest will
cease to accrue on the Securities or portions thereof called for redemption. No Securities of a principal amount of $2,000 or less will be redeemed in part.
7. Amendments and Waivers. Subject to certain exceptions and limitations, the Subordinated Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then outstanding Securities of all series affected by such amendment or supplement (acting as one class). Without the consent of any Holder, the Company, the Guarantor and the
Trustee may amend or supplement the Subordinated Indenture or the Securities or waive any provision of either: (i) to cure any ambiguity, omission, defect or inconsistency; (ii) if required, to provide for the assumption of the obligations of the
Company or the Guarantor under the Subordinated Indenture in the case of the merger, consolidation or sale, lease, conveyance, transfer or other disposition of all or substantially all of the assets of the Company or the Guarantor; (iii) to
provide for uncertificated Securities in addition to or in place of certificated Securities or to provide for the issuance of bearer Securities (with or without coupons); (iv) to provide any security for, or to add any guarantees of or additional
obligors on, the Securities or the related Guarantees; (v) to comply with any requirement in order to effect or maintain the qualification of the Subordinated Indenture under the TIA; (vi) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of the Securities, or to surrender any right or power conferred by the Subordinated Indenture upon the Company or the Guarantor; (vii) to add any additional Events of Default with respect to all or any series of the
Debt Securities; (viii) to change or eliminate any of the provisions of the Subordinated Indenture, provided that no outstanding Security is adversely affected in any material respect; (ix) to establish the form or terms of Securities of any
series; (x) to supplement any of the provisions of the Subordinated Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of the Securities pursuant to the Subordinated Indenture, provided that no
interest of any Holders of Securities is adversely affected in any material respect; or (xi) to evidence and provide for the acceptance of appointment under the Subordinated Indenture by a successor Trustee with respect to the Securities and to
add to or change any of the provisions of the Subordinated Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of the Subordinated
Indenture.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Subordinated Indenture (and the obligation of the Company or
the Guarantor to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as
of a date identified by the Company or the Guarantor in a notice furnished to Holders in accordance with the terms of the Subordinated Indenture.
Without the consent of each Holder affected, the Company may not (i) reduce the principal amount of Securities of such series whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the principal of or extend the fixed maturity of any such Security or alter the provisions with respect to the redemption of such Securities (other than provisions relating to the number of days of
notice to be given in the event of a redemption); (iii) reduce the rate of or extend the stated time for payment of interest on any such Security; (iv) waive a Default or Event of Default in the payment of principal of, or interest or premium on
such series of the Securities (except a rescission of acceleration of such Securities by the Holders of a majority in aggregate principal amount of such series of the Securities and a waiver of the payment default that resulted from such
acceleration); (v) make any such Security payable in currency other than that stated in such Securities; (vi) make any change to provisions relating to waivers of past Defaults or the rights of such Holders to receive payments of principal of, or
interest or premium on such series of the Securities; (vii) impair the contractual right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities on or after the due dates therefor; (viii)
modify the provisions of the Subordinated Indenture relating to the subordination of any subordinated debt security in a manner adverse to the holder thereof; (ix) make any change that adversely affects the rights under the subordination
provisions of any holder of an issue of Senior Indebtedness unless the holders of such issue consent to the change in accordance with its terms; or (x) modify the foregoing requirements necessary to modify or amend the applicable indenture.
A supplemental indenture that changes or eliminates any covenant or other provision of the Subordinated Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities under the Subordinated Indenture, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to
affect the rights under the Subordinated Indenture of the Holders of Debt Securities of any other series.
8. Defaults and Remedies. Events of Default are defined in the Subordinated Indenture and generally include: (i) default for 30 days in payment of any interest on the
Securities (subject to the Company’s right to defer interest payments); (ii) default in any payment of principal of or premium, if any, on the Securities when due and payable; (iii) default by the Company or the Guarantor in compliance with any
of its other covenants or agreements in, or provisions of, the Securities or in the Subordinated Indenture which shall not have been remedied within 90 days after written notice by the Trustee or by the holders of at least 30% in principal amount
of the Securities then outstanding; (iv) certain events involving bankruptcy, insolvency or reorganization of the Company or the Guarantor; and (v) the Guarantee of the Securities ceasing to be in full force and effect (other than in accordance
with the terms of such Guarantee) or the Guarantor denying or disaffirming its obligations under its Guarantee. If an Event of Default occurs and is continuing, the Trustee by notice to the Company and the Guarantor, or the Holders of at least
30% in principal amount of the then outstanding Securities of the series affected by such Event of Default by notice to the Company, the Guarantor and the Trustee, may declare the principal of and accrued and unpaid interest on all the
outstanding Securities to be immediately due and payable; provided that neither the Trustee nor the Holders shall be entitled to declare the principal of or accrued and unpaid interest on the Securities to be immediately due and payable upon an
Event of Default described in clause (iii) above (but may exercise such other rights and remedies as are available under the Subordinated Indenture); and except that in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or the Guarantor, all outstanding Debt Securities under the Subordinated Indenture become due and payable immediately without further action or notice. The amount due and payable upon the acceleration
of any Security is equal to 100% of the principal amount thereof plus accrued interest to the date of payment. Holders may not enforce the Subordinated Indenture or the Securities except as provided in the Subordinated Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Subordinated Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal, premium or interest) if it determines that withholding notice is in their interests. The Company and
the Guarantor must furnish annual compliance certificates to the Trustee.
9. Merger, Consolidation or Sale of Assets. The Subordinated Indenture limits the ability of the Company and the Guarantor to enter into mergers, consolidations or
transfers of all of their respective assets as described below. The Company and the Guarantor may not: (1) consolidate or merge with or into another Person (whether or
not the Company or the Guarantor is the surviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its subsidiaries or the Guarantor and its
subsidiaries, taken as a whole, as the case may be, in one or more related transactions, to another Person; unless: (1) either (a) the Company or the Guarantor, as the case may be, is the surviving entity or (b) the Person formed by or surviving
any such consolidation or merger (if other than the Company or the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized
or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof; (2) the Person formed by or surviving any such consolidation or merger (if other than the Company or the Guarantor) or to which
such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Subordinated Indenture and the Securities or of the Guarantor under the Subordinated Indenture and the
Guarantee, as applicable; and (3) immediately after such transaction, no event of default exists.
This “Merger, Consolidation or Sale of Assets” covenant will not apply to: (1) a merger, amalgamation or consolidation solely for the purpose of reincorporating or
reorganizing the Company or the Guarantor in another jurisdiction or forming a direct or indirect holding company of the Company or the Guarantor; and (2) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or
among the Company, the Guarantor and their respective subsidiaries, including by way of merger or consolidation.
10. Discharge Prior to Maturity. The Subordinated Indenture with respect to the Securities shall be discharged and canceled upon the payment of all of the Securities
and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of any combination of funds and U.S. Government Obligations sufficient for such payment.
11. Trustee Dealings with Company and Guarantor. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may make loans
to, accept deposits from, and perform services for the Company, the Guarantor or any of their respective Affiliates, and may otherwise deal with the Company, the Guarantor or any such Affiliates, as if it were not Trustee.
12. Subordination. The indebtedness of the Company evidenced by this Security, including the principal hereof and interest hereon, is, to the extent and in the manner
set forth in the Subordinated Indenture, subordinate and junior in right of payment to the Company’s obligations to holders of Senior Indebtedness of the Company and each holder of this Security, by acceptance hereof, agrees to and shall be bound
by such provisions of the Subordinated Indenture and all other provisions of the Subordinated Indenture. The obligations of the Guarantor under the Guarantee are, to the extent and in the manner set forth in the Subordinated Indenture,
subordinate and junior in right of payment to the Guarantor’s obligations to holders of Senior Indebtedness of the Guarantor.
13. Tax Treatment. By acceptance of this Security or a beneficial interest in this Security, each Holder hereof and any Person acquiring a beneficial interest herein,
for United States federal, state and local tax purposes, agrees to treat this Security as indebtedness and to take other positions for such tax purposes as set forth in the Subordinated Indenture.
14. No Recourse Against Others. A director, officer, employee, stockholder, partner or other owner of the Company, the Guarantor or the Trustee, as such, shall not have
any liability for any obligations of the Company under the Securities, for any obligations of the Guarantor under the Guarantee or for any obligations of the Company, the Guarantor or the Trustee under the Subordinated Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of Securities.
15. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities and reliance may be placed only on the other identification numbers printed
thereon.
17. 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 to any Holder upon written request and without charge a copy of the Subordinated Indenture. Request may be made to:
Vistra Corp.
6555 Sierra Drive
Irving, Texas 75038
Attention: Legal Department
SCHEDULE OF EXCHANGES OF SECURITIES*
The following exchanges of a part of this Global Security for other Securities have been made:
|
Date of Exchange
|
Amount of Decrease in
Principal Amount of this
Global Security
|
Amount of Increase in
Principal Amount of
this Global Security
|
Principal Amount of
this Global Security
Following Such
Decrease or Increase
|
Signature of
Authorized Officer of
Trustee or Security
Custodian
|
|
*
|
To be included only if the Security is a Global Security
|
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
|
(Insert assignee’s social security or tax I.D. number)
|
|
(Print or type assignee’s name, address and zip code)
|
| and irrevocably appoint |
as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
|
Date:
|
Your Signature:
|
|
|
(Sign exactly as your name appears on
the face of this Security)
|
||
|
Signature Guarantee:
|
|
|
(Participant in a Recognized Signature
Guaranty Medallion Program)
|
EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW YORK CORPORATION (“DTC”), SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]3
VISTRA OPERATIONS COMPANY LLC
7.250% SERIES B JUNIOR SUBORDINATED NOTES DUE 2057
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
VISTRA CORP.
CUSIP No. 92840V BF8
ISIN No. US92840VBF85
No.___________ $_____________
Vistra Operations Company LLC, a Delaware limited liability company (the “Company,” which term includes any successor Person under the Subordinated Indenture
hereinafter referred to), for value received, promises to pay to ____________ or registered assigns, the principal sum of ______________________ Dollars[, or such greater or lesser amount as indicated on the Schedule of Exchanges of Securities
hereto,]4 on March 15, 2057 (the “Maturity Date”), and to pay interest thereon from and including September 24, 2026 (the “Original Issue Date”) or from the most recent date to which interest has been paid or duly provided for,
semi-annually in arrears on March 15 and September 15 of each year (each, an “Interest Payment Date”), commencing March 15, 2027 (subject to the right of the Company to defer the payment of interest, but not beyond the Maturity Date, in
accordance with the provisions set forth below), and on the Maturity Date (i) from and including the Original Issue Date to but excluding March 15, 2037 (the “First Series B Reset Date”), at the rate of 7.250% per annum and (ii) from and
including the First Series B Reset Date, during each Reset Period (as defined below) at a rate per annum equal to the Five-year U.S. Treasury Rate (as defined below) as of the most recent Reset Interest Determination Date (as defined below) plus
a spread of 2.296%, to be reset on each Series B Reset Date (as defined below), until the principal hereof is paid or made available for payment; provided, that the interest rate during any Reset Period will not reset below 7.250%. The Company
shall pay interest on overdue principal and premium (if any) from time to time at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from
time to time at the same rate to the extent lawful. Interest on this Security (as defined on the reverse hereof) shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
3 To be included only if the Security is a Global Security
4 To be included only if the Security is a Global Security
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Subordinated Indenture, be paid to the Person
in whose name this Security is registered at the close of business on the record date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day (as defined in the Subordinated Indenture), as the case may be,
immediately preceding such Interest Payment Date (each, a “Record Date”). The Holder (as defined in the Subordinated Indenture) must surrender this Security to a Paying Agent (as defined in the Subordinated Indenture) to collect principal
payments. The Company shall pay the principal of, premium (if any) on and interest on the Securities in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Such amounts shall
be payable at the offices of the Trustee (as defined on the reverse hereof), provided that at the option of the Company, the Company may pay such amounts (1) by wire transfer with respect to Global Securities (as defined in the Subordinated
Indenture) or (2) by check payable in such money mailed to a Holder’s registered address with respect to any Securities.
If an Interest Payment Date, Redemption Date (as defined in the Subordinated Indenture) or the Stated Maturity (as defined in the Subordinated Indenture) of the
Securities falls on a day that is not a Business Day, the payment of interest and principal will be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the Interest Payment Date,
redemption date or the Stated Maturity, as applicable.
The applicable interest rate for each Reset Period will be determined by the Calculation Agent (as defined below), as of the applicable Reset Interest Determination
Date, in accordance with the following provisions:
“Calculation Agent” means, at any time, the entity appointed by the Company and serving as such agent with respect to the Securities at such time. Unless the Company
has validly called all of the outstanding Securities for redemption on a Redemption Date occurring prior to the First Series B Reset Date, the Company will appoint a Calculation Agent for the Securities prior to the Reset Interest Determination
Date immediately preceding the First Series B Reset Date; provided that, if the Company has called all of the outstanding Securities for redemption on a Redemption Date occurring prior to the First Series B Reset Date but the Company does not
redeem all of the outstanding Securities on such Redemption Date, the Company will appoint a Calculation Agent for the Securities as promptly as practicable after such proposed Redemption Date. The Company may terminate any such appointment and
may appoint a successor Calculation Agent at any time and from time to time (so long as there will always be a Calculation Agent in respect of the Securities when so required). The Company may appoint itself or the Guarantor (as defined on the
reverse hereof) or one of their respective affiliates as Calculation Agent.
“Five-year U.S. Treasury Rate” means, as of any Reset Interest Determination Date, (i) an interest rate (expressed as a decimal) determined to be the per annum rate
equal to the arithmetic mean of the yields to maturity for U.S. Treasury securities adjusted to constant maturity with a maturity of five years from the next Reset Date and trading in the public securities markets, for the five consecutive
Business Days immediately prior to the respective Reset Interest Determination Date as published under the heading “Treasury Constant Maturities” in the most recent H.15 as of 5:00 p.m. (Eastern Time), or (ii) if there is no such published U.S.
Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the arithmetic mean of the yields to maturity for each of the two
series of U.S. Treasury securities adjusted to constant maturity trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date,
and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case for the five consecutive Business Days immediately prior to the respective Reset
Interest Determination Date as published under the heading “Treasury Constant Maturities” in the most recent H.15 as of 5:00 p.m. (Eastern Time). If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause
(i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same rate determined for the prior Reset Interest Determination Date or, if the Five-year U.S. Treasury Rate cannot be so determined as of the Reset Interest Determination Date
preceding the First Series B Reset Date, then the interest rate applicable for the Reset Period beginning on and including the First Series B Reset Date will be deemed to be 7.250% per year.
“H.15” means the statistical release designated as such, or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System (or any
successor thereto).
The “most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
“Reset Date” means a Series B Reset Date.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the first day of such Reset Period.
“Reset Period” means the period from and including the First Series B Reset Date to, but excluding, the next following Series B Reset Date, and thereafter each period
from and including a Series B Reset Date to, but excluding, the next following Series B Reset Date.
“Series B Reset Date” means the First Series B Reset Date, the five-year anniversary of the First Series B Reset Date and each five-year anniversary subsequent to that.
As provided above, the interest rate for each Reset Period will be determined by the Calculation Agent as of the applicable Reset Interest Determination Date. Promptly
upon such determination, the Calculation Agent will notify the Company of the interest rate for the Reset Period and the Company will promptly notify, or cause the Calculation Agent to promptly notify, in writing, the Trustee and each Paying
Agent of such interest rate (and the Trustee shall forward such notice to the Holders of the Securities). The Calculation Agent’s determination of any interest rate, and its calculation of the amount of interest for any Reset Period beginning on
or after the First Series B Reset Date will be on file at the Company’s principal offices, will be made available to any Holder or Beneficial Owner of Securities upon request and will be final and binding in the absence of manifest error. The
Trustee shall be entitled to conclusively rely on any determination made by the Calculation Agent. In no event shall the Trustee be the Calculation Agent, nor shall the Trustee have any liability for such actions taken at the Calculation Agent’s
direction or otherwise in connection with any such determination by the Calculation Agent. If at any time no Calculation Agent shall be appointed as provided above, the Company shall act as the Calculation Agent.
So long as there is no Event of Default with respect to the Securities under the Subordinated Indenture, the Company, at its option, may, on one or more occasions,
defer payment of all or part of the current and accrued interest otherwise due on the Securities for a period of up to 10 consecutive years (each period, commencing on the date that the first such interest payment would otherwise have been made,
a “Series B Optional Deferral Period” or an “Optional Deferral Period”). A deferral of interest payments may not end on a date other than an Interest Payment Date and may not extend beyond the Maturity Date, and the Company may not begin a new
Series B Optional Deferral Period and may not pay current interest on the Securities until it has paid all accrued interest on the Securities from the previous Series B Optional Deferral Period. Such accrued interest shall be payable to the
persons in whose names the Securities are registered at the close of business on the Record Date next preceding such Interest Payment Date.
Any deferred interest on the Securities will accrue additional interest at a rate equal to the interest rate then applicable to the Securities to the extent permitted
by applicable law. Once the Company pays all deferred interest payments on the Securities, including any additional interest accrued on the deferred interest, it shall be entitled to again defer interest payments on the Securities as described
above, but not beyond the Maturity Date of the Securities.
The Company shall give the Trustee an officer’s certificate, notifying it of its election to begin, continue or end a Series B Optional Deferral Period at least one
Business Day before the Record Date for the next Interest Payment Date, which officer’s certificate shall contain an instruction for the Trustee to forward such notice to the Holders of the Securities. However, the Company’s failure to pay
interest on any Interest Payment Date will itself constitute the commencement or continuation of a Series B Optional Deferral Period unless the Company pays such interest within five Business Days after the Interest Payment Date, whether or not
the Company provides a notice of deferral; provided that the Company shall provide the Trustee, promptly upon request, such notice of deferral or continuation of such deferral. In connection with the end of a Series B Optional Deferral Period,
such officer’s certificate will (1) indicate the interest payment date on which the Company will pay the deferred interest; and (2) state the total amount of interest (including deferred interest) to be paid on such date.
During an Optional Deferral Period, the Guarantor and the Company will not do any of the following:
(i) declare or pay any dividends or distributions, or redeem,
purchase, acquire, or make a liquidation payment on any Capital Stock of the Guarantor;
(ii) pay any principal of, or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Guarantor or the Company that rank equally with, or junior to, the Securities in right of payment (including debt securities of other series, such as the Company’s 7.000% Series A
Junior Subordinated Notes due 2057 issued under the Subordinated Indenture); or
(iii) make any payments with respect to any guarantee by the
Guarantor or the Company of indebtedness if the guarantee ranks equally with or junior to the Securities in right of payment.
However, the foregoing restrictions will not apply to:
(a) purchases, redemptions or other acquisitions of Capital
Stock of the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors, agents or consultants or a stock purchase or dividend reinvestment plan,
or the satisfaction of obligations of the Guarantor pursuant to any contract or security outstanding on the date that the payment of interest is deferred requiring the Guarantor to purchase, redeem or acquire its Capital Stock;
(b) any payment, repayment, redemption, purchase,
acquisition or declaration of dividend described in clause (i) above as a result of a reclassification of the Capital Stock the Guarantor, or the exchange or conversion of all or a portion of one class or series of the Guarantor’s Capital
Stock for another class or series of the Guarantor’s Capital Stock;
(c) the purchase of fractional interests in shares of Capital
Stock of the Guarantor pursuant to the conversion or exchange provisions of the Capital Stock of the Guarantor or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts outstanding on the
date that the payment of interest is deferred or in connection with any split, reclassification or similar transaction;
(d) dividends or distributions paid or made in Capital Stock
of the Guarantor (or rights to acquire Capital Stock of the Guarantor), or repurchases, redemptions or acquisitions of Capital Stock in connection with the issuance or exchange of Capital Stock (or of securities convertible into or
exchangeable for shares of Capital Stock of the Guarantor) and distributions in connection with the settlement of stock purchase contracts outstanding on the date that the payment of interest is deferred;
(e) redemptions, exchanges or repurchases of, or with respect
to, any rights outstanding under a shareholder rights plan outstanding on the date that the payment of interest is deferred or the declaration or payment thereunder of a dividend or distribution of or with respect to rights in the future;
(f) payments on the Securities, any trust preferred
securities, subordinated debentures, junior subordinated debentures or junior subordinated notes, or any guarantees of any of the foregoing, in each case that rank equal in right of payment to the Securities, so long as the amount of payments
made on account of such securities or guarantees is paid on all such securities and guarantees then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities and guarantees is then entitled if
paid in full;
(g) any payment of deferred interest or principal on, or
repayment, redemption or repurchase of, parity securities that, if not made, would cause the Guarantor or the Company to breach the terms of the instrument governing such parity securities;
(h) any regularly scheduled dividend or distribution payments
declared prior to the date that the applicable Series B Optional Deferral Period commences; or
(i) for the avoidance of doubt, the conversion of shares of
convertible capital stock of the Guarantor, if any, in accordance with the terms of such convertible Capital Stock.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by its duly authorized officers.
Dated:
|
VISTRA OPERATIONS COMPANY LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
GUARANTEE
Vistra Corp., a Delaware corporation, unconditionally and irrevocably guarantees to the holder of this Security, upon the terms and subject to the conditions set forth
in the Subordinated Indenture referenced on the reverse hereof, (a) the full and prompt payment of the principal of and any premium on this Security when and as the same shall become due, whether at the stated maturity thereof, by acceleration,
redemption or otherwise, and (b) the full and prompt payment of interest on this Security when and as the same shall become due, subject to any applicable grace period.
|
VISTRA CORP.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Certificate of Authentication:
This is one of the Securities of the series designated therein referred to in the within-mentioned Subordinated Indenture.
|
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
|
||
|
By:
|
||
|
Authorized Signatory
|
||
|
Dated:
|
[FORM OF REVERSE OF SECURITY]
VISTRA OPERATIONS COMPANY LLC
7.250% SERIES B JUNIOR SUBORDINATED NOTES DUE 2057
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
VISTRA CORP.
This Security is one of a duly authorized issue of 7.250% Series B Junior Subordinated Notes due 2057 (the “Securities”) of Vistra Operations Company LLC, a Delaware
limited liability company (the “Company”).
1. Paying Agent and Registrar. Initially, Wilmington Trust, National Association (the “Trustee”), the trustee under the Subordinated Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to any Holder. The Company, the Guarantor or any Subsidiary of the Company may act in any such capacity.
2. Guarantee. Vistra Corp., a Delaware corporation (the “Guarantor”), unconditionally and irrevocably guarantees to the Holders from time to time of the Securities,
upon the terms and subject to the conditions set forth in the Subordinated Indenture (as defined below), (a) the full and prompt payment of the principal of and any premium on the Securities when and as the same shall become due, whether at the
Stated Maturity thereof, by acceleration, redemption or otherwise, and (b) the full and prompt payment of any interest on the Securities when and as the same shall become due, subject to any applicable grace period. The Guarantee constitutes a
guarantee of payment and not of collection. In the event of a default in the payment of principal of or any premium on the Securities when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for
redemption or otherwise, or in the event of a default in the payment of any interest on the Securities when and as the same shall become due, subject to any applicable grace period, each of the Trustee and the Holders of the Securities shall have
the right to proceed first and directly against the Guarantor under the Subordinated Indenture without first proceeding against the Company or exhausting any other remedies which the Trustee or such Holder may have and without resorting to any
other security held by it.
3. Subordinated Indenture. The Company issued the Securities under a Subordinated Indenture, dated as of September 24, 2026 (the “Base Indenture”), among the Company,
the Guarantor and the Trustee, as supplemented by the First Supplemental Indenture, dated as of September 24, 2026 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Subordinated Indenture”), among the Company, the
Guarantor and the Trustee. The terms of the Securities include those stated in the Subordinated Indenture and those made part of the Subordinated Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”), as in effect on
the date of execution of the Subordinated Indenture. The Securities are subject to all such terms, and Holders are referred to the Subordinated Indenture and the TIA for a statement of such terms and for the definitions of capitalized terms used
but not defined herein. The Securities are subordinated, unsecured obligations of the Company limited to $650,000,000 in aggregate principal amount; provided, however, that the authorized aggregate principal amount of the Securities may be
increased before or after the issuance of any Securities by a Board Resolution (or action pursuant to a Board Resolution) to such effect; provided, however, that if the additional Securities are not fungible with the original Securities for U.S.
federal income tax purposes, those additional Securities will have a different CUSIP, ISIN, or other identifying number so that they are distinguishable from the original Securities. The Subordinated Indenture provides for the issuance of other
series of debt securities (including the Securities, the “Debt Securities”) thereunder.
4. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in minimum denominations of $2,000 and any integral multiples of $1,000
above such amount. The transfer of Securities may be registered and Securities may be exchanged as provided in the Subordinated Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or permitted by the Subordinated Indenture. Neither the Company, the Trustee nor the Registrar shall be required to register the transfer or exchange of (a) any Security
selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (b) any Security during the period beginning 15 Business Days before the mailing of notice of redemption of Securities to be
redeemed and ending at the close of business on the day of mailing.
5. Persons Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
6. Optional Redemption. The Company shall have the option to redeem the Securities pursuant to Article III of the Subordinated Indenture:
(i) in whole or in part on one or more occasions at a
Redemption Price equal to 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date (a) on any day in the period commencing on the date falling 90 days prior to the First Series B
Reset Date and ending on and including the First Series B Reset Date and (b) after the First Series B Reset Date, on any Interest Payment Date;
(ii) in whole, but not in part, at a Redemption Price equal
to 100% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Tax Event (as defined below);
(iii) in whole, but not in part, at a Redemption Price equal
to 101% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Tax Credit Event (as defined below); it being
understood that a notice of redemption of the Securities upon the occurrence of a Tax Credit Event (i) may only be sent by the later of (a) the end of the calendar year in which the Securities were issued and (b) six months from the date of
issuance of the Securities and (ii) shall be accompanied by an officer’s certificate from the Company stating that a Tax Credit Event has occurred;
(iv) in whole, but not in part, at a Redemption Price equal to
102% of the principal amount being redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence and during the continuance of a Rating Agency Event (as defined below); and
(v) subject to the paragraph that follows, in whole, but not in part, at a Redemption Price equal to 101% of the principal amount being redeemed, plus accrued and
unpaid interest to, but excluding, the Redemption Date, at any time following the occurrence of a Change of Control Triggering Event (a “Change of Control Redemption”).
Unless the Company has previously or concurrently given a redemption notice to Holders of all outstanding Securities pursuant to any of clauses (i), (ii), (iii) or (iv)
above, within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control Triggering Event, but after the public announcement of the related Change of Control, the Company will send a
notice to each Holder of the Securities (with a copy to the Trustee) describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and either the Company’s election not to redeem the
Securities or the date of the Change of Control Payment (the “Change of Control Payment Date”). The notice shall, if sent prior to the occurrence of the Change of Control Triggering Event, state that the Change of Control Redemption is
conditioned on the Change of Control Triggering Event occurring on or prior to the redemption date specified in the notice. If no Change of Control Redemption is made by the Company within the time periods specified in this clause following a
Change of Control Triggering Event and the Company has not otherwise given a redemption notice to Holders of all outstanding Securities pursuant to any of clauses (i), (ii), (iii) or (iv) above, the per annum rate of interest payable on the
Securities will be increased by an additional 5.0 percentage points from and including the date on which the applicable notice of a Change of Control Triggering Event is sent to holders and the Company shall send a notice to the Trustee and the
Paying Agent (in the form of an Officer’s Certificate), notifying it of such increase and of the amount of interest payable on the next Interest Payment Date. Unless and until the Trustee and the Paying Agent receive such notice, they may
conclusively assume no change has been made to the interest rate.
On and after a Change of Control Payment Date, interest will cease to accrue on the Securities called for redemption (unless the Company defaults in the payment of the
redemption price and accrued interest). On or before the Change of Control Payment Date, the Company will deposit with the Trustee money sufficient to pay the Redemption Price of and accrued and unpaid interest to the Redemption Date of such
Securities; provided that any installment of interest due and payable on an Interest Payment Date that is also the Redemption Date shall be paid in accordance with the provisions set forth below.
“Attributable Debt” means, in respect of a sale and leaseback transaction, at the time of determination, the present value of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capitalized Lease Obligation, the amount
of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “Beneficially Owns,” “Beneficially Owned” and
“Beneficial Ownership” have a corresponding meaning.
“Board of Directors” means: (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of
such board; (2) with respect to a partnership, the board of directors of the general partner of the partnership; (3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members
thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day other than a Saturday, a Sunday or a day on which banking institutions in New York City (and, with respect to payments, in the place of
payment) are authorized or required by law to remain closed.
“Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Capitalized Lease Obligations” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet in accordance with GAAP, and the maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by
the lessee without payment of a penalty.
“Change of Control” means the occurrence of any of the following after the Issue Date:
(1) the sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Guarantor and its subsidiaries, taken as a whole, to any “person” (as that term is used
in Section 13(d) of the Exchange Act), but excluding any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan; or
(2) The Guarantor becomes aware of (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person”
(as defined above), other than (x) any employee benefit plan of the Guarantor or any of its subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, (y) any one or more
parents of the Guarantor in which no “person” directly or indirectly, holds beneficial ownership of Voting Stock representing more than 50% of the aggregate voting power represented by the issued and outstanding Voting Stock of such parent,
or (z) an entity owned directly or indirectly by the direct or indirect stockholders of the Guarantor in substantially the same proportion as their direct or indirect ownership of Voting Stock of the Guarantor prior to such transaction,
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Guarantor, measured by voting power rather than number of shares.
For the avoidance of doubt, for purposes of this definition, (i) a merger or consolidation of a subsidiary of the Guarantor into another subsidiary of Guarantor, or
(ii) a sale of a subsidiary of Guarantor to another person in a transaction not prohibited by the terms of the Subordinated Indenture will not be deemed to be a Change of Control.
Notwithstanding the preceding or any provision of Rule 13d-3 or 13d-5 under the Exchange Act, (i) a Person or “group” shall not be deemed to Beneficially Own securities
subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) a Person or “group”
will not be deemed to Beneficially Own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns more than 50% of the
total voting power of the Voting Stock of such parent entity, and (iii) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in
connection with the acquisition or disposition of Voting Stock will not cause a party to be a “Beneficial Owner.”
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in
effect from time to time; provided, however, that, if (i) any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the Issue Date, then, solely with
respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the Issue Date and (ii) if the Company notifies the Trustee that it desires to eliminate the effect of any change occurring after the Issue
Date in GAAP or in the application thereof on the operation of any provision of the Subordinated Indenture, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; or (2) (i) agreements or arrangements designed to protect such Person against fluctuations in currency
exchange, interest rates, commodity prices or commodity transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase and sale agreements, swaps, options and other
agreements, in each case, that fluctuate in value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for commercial or trading activities with respect to the purchase, transmission, distribution, sale, lease or
hedge of any energy related commodity or service.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables, except as provided in clause
(5) below), whether or not contingent: (1) in respect of borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (3) in respect of bankers’
acceptances; (4) representing Capitalized Lease Obligations or Attributable Debt in respect of sale and leaseback transactions; (5) representing the balance deferred and unpaid of the purchase price of any property (including trade payables) or
services due more than six months after such property is acquired or such services are completed; (6) representing the net amount owing under any Hedging Obligations; or (7) if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; provided, that the amount of such Indebtedness shall be deemed not to exceed the lesser of
the amount secured by such Lien and the value of the Person’s property securing such Lien.
“Investment Grade” in respect of the Securities means a rating of: (a) Baa3 or better by Moody’s; (b) BBB- or better by Fitch; or (c) BBB- or better from S&P (or
the equivalent of such rating by such rating organization or, if no rating of Moody’s, Fitch or S&P exists, the equivalent of such rating by any other Nationally Recognized Statistical Rating Organization selected by the Company as a
replacement agency).
“Issue Date” means September 24, 2026.
“Lien” means, with respect to any asset, any mortgage, pledge, security interest, hypothecation, collateral assignment, lien (statutory or other) or similar encumbrance
(including any conditional sale or other title retention agreement or any lease or license in the nature thereof); provided that in no event shall an operating lease be deemed to be a Lien.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the
Exchange Act.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company
or government or other entity of any kind.
“Place of Payment” means the place or places where the principal of, premium (if any) and interest on the Securities are payable as specified in accordance with the
Subordinated Indenture.
“Rating Agencies” means (1) Moody’s, (2) Fitch, (3) S&P and (4) if any of Moody’s, Fitch or S&P shall not make a rating of the Securities available, a
Nationally Recognized Statistical Rating Organization selected by the Company which shall be substituted for Moody’s, Fitch or S&P, as the case may be, with respect to the Securities.
“Rating Agency Event” means, as of any date, a change, clarification or amendment in the methodology published by any nationally recognized statistical rating
organization within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (or any successor provision thereto), that then publishes a rating for the Guarantor or the Company (together with any successor thereto, a
“rating agency”) in assigning equity credit to securities such as the Securities, (a) as such methodology was in effect on September 10, 2026, in the case of any rating agency that published a rating for the Guarantor or the Company as of
September 10, 2026, or (b) as such methodology was in effect on the date such rating agency first published a rating for the Guarantor or the Company, in the case of any rating agency that first publishes a rating for the Guarantor or the Company
after September 10, 2026 (in the case of either clause (a) or (b), the “current methodology”), that results in (i) any shortening of the length of time for which a particular level of equity credit pertaining to the Securities by such rating
agency would have been in effect had the current methodology not been changed or (ii) a lower equity credit (including up to a lesser amount) being assigned by such rating agency to the Securities as of the date of such change, clarification or
amendment than the equity credit that would have been assigned to the Securities by such rating agency had the current methodology not been changed.
“Rating Date” means the earlier of (1) the consummation of a Change of Control, and (2) public announcement of the occurrence of a Change of Control or of the intention
of the Company to effect a Change of Control.
“Rating Decline” means the decrease in the rating of the Securities by two or more Rating Agencies by one or more gradations (including gradations within rating
categories as well as between rating categories) from its rating on the Rating Date, or the withdrawal of a rating of the Securities by two or more Rating Agencies, in each case on, or within 60 days after, the Rating Date (which period shall be
extended so long as the rating of the Securities is under publicly announced consideration by any of the Rating Agencies); provided that such Rating Agencies have confirmed that such decrease in or withdrawal of rating is a result of the Change
of Control, and provided, further, that no Rating Decline shall occur if following such decrease in rating, (x) the senior unsecured rating assigned to the Company by at least two Rating Agencies is Investment Grade or (y) the ratings of the
Securities by at least two Rating Agencies are equal to or better than their respective ratings on the Issue Date.
“S&P” means S&P Global Ratings (a division of S&P Global, Inc.) or any of its successors or assigns that is a Nationally Recognized Statistical Rating
Organization.
“Senior Indebtedness” means (i) with respect to the Company and the Securities, all Indebtedness of the Company and (ii) with respect to the Guarantor and the
Guarantee, all Indebtedness of the Guarantor, in each case whether outstanding as of the date of the Subordinated Indenture or thereafter created, incurred or assumed unless, by the terms of the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding, it is provided that such Indebtedness is not superior in right of payment to the Securities, in the case of the Company, or the Guarantee, in the case of the Guarantor, or to other
Indebtedness that is pari passu with or subordinated to the Securities, in the case of the Company, or the Guarantee, in the case of the Guarantor, and includes any modification, refunding, deferral, renewal or extension of any such Indebtedness
and any securities, notes or other evidences of Indebtedness issued in exchange for such Indebtedness; provided that “Senior Indebtedness” does not include (a) Indebtedness of the Company or the Guarantor owed or owing to any subsidiary or any
officer, director or employee of the Company, the Guarantor or any of their respective subsidiaries, (b) Indebtedness to trade creditors or (c) any liability for taxes owed or owing by the Company or the Guarantor.
“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such tax matters to the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in the laws or treaties of the United States or any political subdivisions or taxing authorities, or any regulations under such laws or treaties, (b) any judicial decision
or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement (including any notice or announcement of intent to issue or adopt any such administrative pronouncement, ruling, regulatory procedure or
regulation), (c) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an
administrative action or judicial decision that differs from the theretofore generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body, irrespective of the time or manner in which such
amendment, clarification or change is introduced or made known, or (d) threatened challenge asserted in writing in connection with an audit of the Guarantor or any of its subsidiaries, or a publicly-known threatened challenge asserted in writing
against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Securities, which amendment, clarification, or change is effective, or which administrative action is taken or which
judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known, in each case after September 10, 2026, there is more than an insubstantial risk that interest payable by the Company on
the Securities is not deductible, or within 90 days would not be deductible, in whole or in part, by the Company for United States federal income tax purposes.
“Tax Credit Event” means, with respect to the Securities, if in the reasonable determination of the Company, there exists a material risk, due to the Securities
(considered on a standalone basis or together with other debt) having been issued, as part of an original issuance, to one or more “specified foreign entities,” as defined in Section 7701(a)(51)(B) of the Internal Revenue Code of 1986, as amended
(the “Code”), that the Company or any of its affiliates would be unable to utilize or otherwise ineligible to claim any tax credits otherwise allowed under Section 38 of the Code.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of
such Person under ordinary circumstances.
If no Rating Agency announces an action with regard to its rating of the Securities after the occurrence of a Change of Control, the Company shall request each Rating
Agency to confirm its rating of the Securities before the end of such 60-day period.
Installments of interest on the Securities that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date will be payable on that
Interest Payment Date to the Holders as of the close of business on the relevant Record Date according to the terms of the Securities and the Subordinated Indenture, except that, if the Redemption Date falls on any day during an Optional Deferral
Period, accrued and unpaid interest on such Securities will be paid on such Redemption Date to the persons entitled to receive the Redemption Price of such Securities. For the avoidance of doubt, the Interest Payment Date falling immediately
after the last day of an Optional Deferral Period will not be deemed to fall on a day during such Optional Deferral Period.
Notice of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days
but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed. If, at the time a notice of redemption is given, the Company has not effected satisfaction and discharge in accordance with Section 11.01 of the
Subordinated Indenture or covenant defeasance or legal defeasance of the Securities in accordance with Section 8.02 or 8.03 of the Subordinated Indenture, as applicable, and such notice of redemption is not being given in connection with or in
order to effect satisfaction and discharge, covenant defeasance or legal defeasance of the Securities, then, if the notice of redemption so provides and at the Company’s option, the redemption may be subject to the condition that the Trustee
shall have received, on or before the applicable Redemption Date, monies in an amount sufficient to pay the Redemption Price and accrued and unpaid interest on the Securities called for redemption to, but excluding, the Redemption Date. If monies
in such amount are not received by the Trustee on or before such Redemption Date, such notice of redemption shall be automatically canceled and of no force or effect, such proposed redemption shall be automatically canceled and the Company shall
not be required to redeem the Securities called for redemption on such Redemption Date. In the event that a redemption is canceled, the Company will, not later than the Business Day immediately following the proposed Redemption Date, deliver, or
cause to be delivered, notice of such cancellation to the Holders of the Securities called for redemption (which notice will also indicate that any Securities or portions thereof surrendered for redemption will be returned to the applicable
Holders), and the Company will direct the Trustee to, and the Company will cause the Trustee to, promptly return any Securities or portions thereof that have been surrendered for redemption to the applicable Holders.
Unless the Company or the Guarantor defaults in payment of the Redemption Price or the proposed redemption is rescinded, on and after the Redemption Date interest will
cease to accrue on the Securities or portions thereof called for redemption. No Securities of a principal amount of $2,000 or less will be redeemed in part.
7. Amendments and Waivers. Subject to certain exceptions and limitations, the Subordinated Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then outstanding Securities of all series affected by such amendment or supplement (acting as one class). Without the consent of any Holder, the Company, the Guarantor and the
Trustee may amend or supplement the Subordinated Indenture or the Securities or waive any provision of either: (i) to cure any ambiguity, omission, defect or inconsistency; (ii) if required, to provide for the assumption of the obligations of the
Company or the Guarantor under the Subordinated Indenture in the case of the merger, consolidation or sale, lease, conveyance, transfer or other disposition of all or substantially all of the assets of the Company or the Guarantor; (iii) to
provide for uncertificated Securities in addition to or in place of certificated Securities or to provide for the issuance of bearer Securities (with or without coupons); (iv) to provide any security for, or to add any guarantees of or additional
obligors on, the Securities or the related Guarantees; (v) to comply with any requirement in order to effect or maintain the qualification of the Subordinated Indenture under the TIA; (vi) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of the Securities, or to surrender any right or power conferred by the Subordinated Indenture upon the Company or the Guarantor; (vii) to add any additional Events of Default with respect to all or any series of the
Debt Securities; (viii) to change or eliminate any of the provisions of the Subordinated Indenture, provided that no outstanding Security is adversely affected in any material respect; (ix) to establish the form or terms of Securities of any
series; (x) to supplement any of the provisions of the Subordinated Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of the Securities pursuant to the Subordinated Indenture, provided that no
interest of any Holders of Securities is adversely affected in any material respect; or (xi) to evidence and provide for the acceptance of appointment under the Subordinated Indenture by a successor Trustee with respect to the Securities and to
add to or change any of the provisions of the Subordinated Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee, pursuant to the requirements of the Subordinated
Indenture.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Subordinated Indenture (and the obligation of the Company or
the Guarantor to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as of
a date identified by the Company or the Guarantor in a notice furnished to Holders in accordance with the terms of the Subordinated Indenture.
Without the consent of each Holder affected, the Company may not (i) reduce the principal amount of Securities of such series whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the principal of or extend the fixed maturity of any such Security or alter the provisions with respect to the redemption of such Securities (other than provisions relating to the number of days of
notice to be given in the event of a redemption); (iii) reduce the rate of or extend the stated time for payment of interest on any such Security; (iv) waive a Default or Event of Default in the payment of principal of, or interest or premium on
such series of the Securities (except a rescission of acceleration of such Securities by the Holders of a majority in aggregate principal amount of such series of the Securities and a waiver of the payment default that resulted from such
acceleration); (v) make any such Security payable in currency other than that stated in such Securities; (vi) make any change to provisions relating to waivers of past Defaults or the rights of such Holders to receive payments of principal of, or
interest or premium on such series of the Securities; (vii) impair the contractual right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities on or after the due dates therefor; (viii)
modify the provisions of the Subordinated Indenture relating to the subordination of any subordinated debt security in a manner adverse to the holder thereof; (ix) make any change that adversely affects the rights under the subordination
provisions of any holder of an issue of Senior Indebtedness unless the holders of such issue consent to the change in accordance with its terms; or (x) modify the foregoing requirements necessary to modify or amend the applicable indenture.
A supplemental indenture that changes or eliminates any covenant or other provision of the Subordinated Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities under the Subordinated Indenture, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to
affect the rights under the Subordinated Indenture of the Holders of Debt Securities of any other series.
8. Defaults and Remedies. Events of Default are defined in the Subordinated Indenture and generally include: (i) default for 30 days in payment of any interest on the
Securities (subject to the Company’s right to defer interest payments); (ii) default in any payment of principal of or premium, if any, on the Securities when due and payable; (iii) default by the Company or the Guarantor in compliance with any
of its other covenants or agreements in, or provisions of, the Securities or in the Subordinated Indenture which shall not have been remedied within 90 days after written notice by the Trustee or by the holders of at least 30% in principal amount
of the Securities then outstanding; (iv) certain events involving bankruptcy, insolvency or reorganization of the Company or the Guarantor; and (v) the Guarantee of the Securities ceasing to be in full force and effect (other than in accordance
with the terms of such Guarantee) or the Guarantor denying or disaffirming its obligations under its Guarantee. If an Event of Default occurs and is continuing, the Trustee by notice to the Company and the Guarantor, or the Holders of at least
30% in principal amount of the then outstanding Securities of the series affected by such Event of Default by notice to the Company, the Guarantor and the Trustee, may declare the principal of and accrued and unpaid interest on all the
outstanding Securities to be immediately due and payable; provided that neither the Trustee nor the Holders shall be entitled to declare the principal of or accrued and unpaid interest on the Securities to be immediately due and payable upon an
Event of Default described in clause (iii) above (but may exercise such other rights and remedies as are available under the Subordinated Indenture); and except that in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or the Guarantor, all outstanding Debt Securities under the Subordinated Indenture become due and payable immediately without further action or notice. The amount due and payable upon the acceleration
of any Security is equal to 100% of the principal amount thereof plus accrued interest to the date of payment. Holders may not enforce the Subordinated Indenture or the Securities except as provided in the Subordinated Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Subordinated Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal, premium or interest) if it determines that withholding notice is in their interests. The Company and
the Guarantor must furnish annual compliance certificates to the Trustee.
9. Merger, Consolidation or Sale of Assets. The Subordinated Indenture limits the ability of the Company and the Guarantor to enter into mergers, consolidations or
transfers of all of their respective assets as described below. The Company and the Guarantor may not: (1) consolidate or merge with or into another Person (whether or
not the Company or the Guarantor is the surviving corporation) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its subsidiaries or the Guarantor and its
subsidiaries, taken as a whole, as the case may be, in one or more related transactions, to another Person; unless: (1) either (a) the Company or the Guarantor, as the case may be, is the surviving entity or (b) the Person formed by or surviving
any such consolidation or merger (if other than the Company or the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized
or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof; (2) the Person formed by or surviving any such consolidation or merger (if other than the Company or the Guarantor) or to which
such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Subordinated Indenture and the Securities or of the Guarantor under the Subordinated Indenture and the
Guarantee, as applicable; and (3) immediately after such transaction, no event of default exists.
This “Merger, Consolidation or Sale of Assets” covenant will not apply to: (1) a merger, amalgamation or consolidation solely for the purpose of reincorporating or
reorganizing the Company or the Guarantor in another jurisdiction or forming a direct or indirect holding company of the Company or the Guarantor; and (2) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or
among the Company, the Guarantor and their respective subsidiaries, including by way of merger or consolidation.
10. Discharge Prior to Maturity. The Subordinated Indenture with respect to the Securities shall be discharged and canceled upon the payment of all of the Securities
and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of any combination of funds and U.S. Government Obligations sufficient for such payment.
11. Trustee Dealings with Company and Guarantor. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may make loans
to, accept deposits from, and perform services for the Company, the Guarantor or any of their respective Affiliates, and may otherwise deal with the Company, the Guarantor or any such Affiliates, as if it were not Trustee.
12. Subordination. The indebtedness of the Company evidenced by this Security, including the principal hereof and interest hereon, is, to the extent and in the manner
set forth in the Subordinated Indenture, subordinate and junior in right of payment to the Company’s obligations to holders of Senior Indebtedness of the Company and each holder of this Security, by acceptance hereof, agrees to and shall be bound
by such provisions of the Subordinated Indenture and all other provisions of the Subordinated Indenture. The obligations of the Guarantor under the Guarantee are, to the extent and in the manner set forth in the Subordinated Indenture,
subordinate and junior in right of payment to the Guarantor’s obligations to holders of Senior Indebtedness of the Guarantor.
13. Tax Treatment. By acceptance of this Security or a beneficial interest in this Security, each Holder hereof and any Person acquiring a beneficial interest herein,
for United States federal, state and local tax purposes, agrees to treat this Security as indebtedness and to take other positions for such tax purposes as set forth in the Subordinated Indenture.
14. No Recourse Against Others. A director, officer, employee, stockholder, partner or other owner of the Company, the Guarantor or the Trustee, as such, shall not have
any liability for any obligations of the Company under the Securities, for any obligations of the Guarantor under the Guarantee or for any obligations of the Company, the Guarantor or the Trustee under the Subordinated Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of Securities.
15. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities and reliance may be placed only on the other identification numbers printed
thereon.
17. 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 to any Holder upon written request and without charge a copy of the Subordinated Indenture. Request may be made to:
Vistra Corp.
6555 Sierra Drive
Irving, Texas 75038
Attention: Legal Department
SCHEDULE OF EXCHANGES OF SECURITIES*
The following exchanges of a part of this Global Security for other Securities have been made:
|
Date of Exchange
|
Amount of Decrease in
Principal Amount of
this Global Security
|
Amount of Increase in
Principal Amount of
this Global Security
|
Principal Amount of
this Global Security
Following Such
Decrease or Increase
|
Signature of
Authorized Officer of
Trustee or Security
Custodian
|
|
*
|
To be included only if the Security is a Global Security
|
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
|
(Insert assignee’s social security or tax I.D. number)
|
|
(Print or type assignee’s name, address and zip code)
|
| and irrevocably appoint |
as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
|
Date:
|
Your Signature:
|
|
|
(Sign exactly as your name appears on
the face of this Security)
|
||
|
Signature Guarantee:
|
|
|
(Participant in a Recognized Signature
Guaranty Medallion Program)
|
EXHIBIT B
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW YORK CORPORATION (“DTC”), SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Exhibit 5.1
 |
2323 CEDAR SPRINGS
+1 214 981 3300
+1 214 981 3400 FAX
AMERICA • ASIA PACIFIC •
EUROPE
|
September 24, 2026
Vistra Corp.
Vistra Operations Company LLC
6555 Sierra Drive
Irving, Texas 75039
| Re: |
Vistra Operations Company LLC — $850,000,000 7.000% Series A Junior Subordinated Notes due 2057 and $650,000,000 7.250% Series B Junior Subordinated Notes due 2057, Guaranteed by Vistra Corp.
|
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3, File Nos. 333-298811 and 333-298811-01 (the “Registration
Statement”), filed by Vistra Corp., a Delaware corporation (“Vistra”), and Vistra Operations Company LLC, a Delaware limited liability company and an indirect wholly owned
subsidiary of Vistra (“Vistra Operations” and, together with Vistra, the “Registrants”), with the Securities and Exchange
Commission (the “SEC”) on September 8, 2026 under the Securities Act of 1933, as amended (the “Securities Act”), which
Registration Statement became effective upon filing pursuant to Rule 462(e) under the Securities Act. Pursuant to the Registration Statement, Vistra Operations is issuing $850,000,000 aggregate principal amount of its 7.000% Series A Junior
Subordinated Notes due 2057 (the “Series A Notes”) and $650,000,000 aggregate principal amount of its 7.250% Series B Junior Subordinated Notes due 2057 (the “Series B Notes” and, together with the Series A Notes, the “Notes”), and Vistra is providing its irrevocable and unconditional guarantee of the Notes on
a subordinated basis (the “Guarantee” and, together with the Notes, the “Securities”). The Securities are being issued under an
Indenture dated as of September 24, 2026 (the “Base Indenture”), as amended and supplemented by a First Supplemental Indenture dated as of September 24, 2026 (the “Supplemental Indenture;” the Base Indenture, as amended and supplemented by the First Supplemental Indenture, is hereinafter called the “Indenture”),
each among Vistra Operations, as issuer, Vistra, as guarantor, and Wilmington Trust, National Association, as trustee (the “Trustee”). The Securities are to be sold by Vistra Operations
pursuant to an underwriting agreement dated September 10, 2026 (the “Underwriting Agreement”) among Vistra Operations, Vistra and Barclays Capital Inc., BofA Securities, Inc., Mizuho
Securities USA LLC, MUFG Securities Americas Inc. and Truist Securities, Inc., as representatives of the several Underwriters named therein. The Securities are described in the prospectus dated September 8, 2026 included in the Registration
Statement, as supplemented by the prospectus supplement dated September 10, 2026 (together, the “Prospectus”), filed with the SEC pursuant to Rule 424(b)(2) under the Securities Act.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Vistra Corp.
Vistra Operations Company LLC
September 24, 2026
Page 2
We have examined the Registration Statement, the Prospectus, the Indenture, the Underwriting Agreement, the Securities in global form and the
resolutions adopted by the board of directors of Vistra relating to the Registration Statement, the Indenture and the Underwriting Agreement, and the issuance of the Guarantee by Vistra, and the resolutions adopted by the board of managers of
Vistra Operations relating to the Registration Statement, the Indenture, the Underwriting Agreement and the issuance of the Notes by Vistra Operations. We have also examined originals, or copies of originals certified to our satisfaction, of such
agreements, documents, certificates and statements of the Registrants and other corporate and limited liability company documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for
this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof
submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written
statements and representations of public officials and officers and other representatives of the Registrants.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that the
Securities will constitute valid and binding obligations of the Registrants when the Securities are duly executed by a duly authorized officer of each Registrant and the Notes are duly authenticated by the Trustee, all in accordance with the
provisions of the Indenture, and delivered to the purchasers thereof against payment of the agreed consideration therefor in accordance with the Underwriting Agreement.
Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws
relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief.
This opinion letter is limited to the General Corporation Law of the State of Delaware, the Limited Liability Company Act of the State of Delaware and
the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States
of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an Exhibit to the Current Report on Form 8-K of Vistra filed with the SEC on or about the
date hereof, which is incorporated by reference into the Registration Statement, and to all references to our Firm included in or made a part of the Registration Statement and the Prospectus. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the Securities Act.
Vistra Corp.
Vistra Operations Company LLC
September 24, 2026
Page 3
|
Very truly yours,
|
|
|
/s/ Sidley Austin LLP
|