Use these links to rapidly review the document
TABLE OF CONTENTS

Table of Contents

As filed with the Securities and Exchange Commission on October 11, 2012

Registration No. 333-                  

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


Air Lease Corporation
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction
of incorporation or organization) 		  27-1840403
(I.R.S. Employer
Identification Number)

2000 Avenue of the Stars, Suite 1000N
Los Angeles, CA 90067
(310) 553-0555
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)


Gregory B. Willis
Senior Vice President and Chief Financial Officer
Air Lease Corporation
2000 Avenue of the Stars, Suite 1000N
Los Angeles, CA 90067
(310) 553-0555
(Name, address, including zip code, and telephone number, including area code,
of agent for service)


Copies to:

Carol H. Forsyte
Executive Vice President,
General Counsel, Corporate Secretary &
Chief Compliance Officer
Air Lease Corporation
2000 Avenue of the Stars, Suite 1000N
Los Angeles, CA 90067
(310) 553-0555
 
Mark H. Kim, Esq.
Munger, Tolles & Olson LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA 90071
(213) 683-9100


Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this registration statement.


             If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  o

             If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ý

             If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

             If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

             If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ý

             If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  o

             Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  o   Accelerated filer  o   Non-accelerated filer  ý
(Do not check if a
smaller reporting company) 		  Smaller reporting company  o


CALCULATION OF REGISTRATION FEE

               
 
Title of Each Class of Securities
to be Registered(1)
  Amount to be
Registered(2)
  Proposed Maximum
Offering Price Per
Unit(2)
  Proposed Maximum
Aggregate Offering
Price(2)
  Amount of
Registration Fee(3)
 

Debt Securities

               
 

Preferred Stock(4)

               
 

Class A Common Stock(4)

               
 

Depositary Shares(4)

               
 

Warrants(5)

               
 

Rights(6)

               
 

Purchase Contracts(7)

               
 

Units(8)

               

 

(1)
Securities registered hereunder may be sold separately, together or in units with other securities registered hereby or other securities.

(2)
An unspecified aggregate initial offering price or amount of securities of each identified class is being registered as may from time to time be issued at indeterminate prices and amounts.

(3)
In accordance with Rules 456(b) and 457(r), Air Lease Corporation is deferring payment of all applicable registration fees.

(4)
In addition to any preferred stock, depositary shares or Class A Common Stock that may be issued directly under this registration statement, there are being registered hereunder an indeterminate number of shares of preferred stock, depositary shares and Class A Common Stock as may be issued upon conversion or exchange of debt securities, preferred stock or depositary shares, as the case may be. Separate consideration may or may not be received for any shares of preferred stock, depositary shares or Class A Common Stock so issued upon conversion or exchange.

(5)
Warrants may be issued in primary or secondary offerings. Warrants may be issued representing rights to purchase Class A Common Stock or debt registered hereby.

(6)
Rights may be issued to purchase Class A Common Stock and/or any of the other securities registered hereby. Each series of rights will be issued under a separate rights agreement to be entered into between Air Lease Corporation and a bank or trust company, as rights agent.

(7)
Purchase contracts may be issued for the purchase and sale of any securities registered hereby.

(8)
Units may be issued that may consist of any combination of the other securities registered hereby.

   

Table of Contents

PROSPECTUS

LOGO

AIR LEASE CORPORATION
Debt Securities
Preferred Stock
Class A Common Stock
Warrants
Depositary Shares
Rights
Purchase Contracts
Units


        We will provide specific terms of these securities in supplements and/or in free writing prospectuses accompanying this prospectus. You should read this prospectus and any supplement and free writing prospectus accompanying this prospectus carefully before you invest.


        Our Class A Common Stock is listed on the New York Stock Exchange under the symbol "AL." Any Class A Common Stock issued pursuant to a prospectus supplement will be listed, subject to notice of issuance, on the New York Stock Exchange or a successor thereof.


         Investment in any securities offered by this prospectus involves risk. See "Risk Factors" on page 3 of this prospectus and the risk factors disclosed in our periodic reports filed from time to time with the Securities and Exchange Commission and in the applicable prospectus supplement or free writing prospectus accompanying this prospectus.

         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.


        The date of this prospectus is October 11, 2012.

Table of Contents

        You should rely only on the information contained in or incorporated by reference in this prospectus and in any accompanying prospectus supplement or any free writing prospectus prepared by us or on our behalf. We have not authorized anyone to provide you with any information that is different or to make any different or additional representations. We are not making any offer to sell these or any securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained or incorporated by reference in this prospectus, in any accompanying prospectus supplement or in any free writing prospectus prepared by us or on our behalf is accurate as of any date other than the date on the front of each such document.


TABLE OF CONTENTS

 
  Page  

Risk Factors

    3  

Forward-Looking Statements

    3  

About This Prospectus

    3  

Where You Can Find More Information

    4  

Description of Air Lease Corporation

    5  

Use of Proceeds

    6  

Ratios of Earnings to Fixed Charges

    6  

Description of Debt Securities

    6  

Description of Capital Stock

    11  

Description of Warrants

    15  

Description of Depositary Shares

    16  

Description of Rights

    19  

Description of Purchase Contracts

    20  

Description of Units

    21  

Plan of Distribution

    22  

Legal Matters

    22  

Experts

    22  

        When this prospectus, any prospectus supplement or any free writing prospectus uses the terms "Company, " "ALC," "we, " "our" and "us" refer to Air Lease Corporation and its consolidated subsidiaries unless otherwise stated or the context otherwise requires. Our fiscal year ends on December 31. When this prospectus, any prospectus supplement or any free writing prospectus refers to particular years or quarters in connection with the discussion of our results of operations or financial condition, those references mean the relevant fiscal years and fiscal quarters, unless otherwise stated.

        The information in this prospectus, in any accompanying prospectus supplement, in any free writing prospectus and in the documents incorporated by reference or deemed incorporated by reference herein or therein concerning market share, ranking, industry data and forecasts is obtained from industry publications, surveys, public filings and internal company sources. Industry publications, surveys and forecasts generally state that the information contained therein has been obtained from sources believed to be reliable, but there can be no assurance as to the accuracy or completeness of included information. Although we believe that this publicly available information and the information provided by these industry sources is reliable, we have not independently verified any of the data from third-party sources, nor have we ascertained the underlying economic assumptions relied upon therein.

2

Table of Contents


RISK FACTORS

        Investment in any securities offered pursuant to this prospectus involves risks. You should carefully consider the risk factors incorporated herein by reference from our most recent Annual Report on Form 10-K and our subsequent Quarterly Reports on Form 10-Q and the other information contained in this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the risk factors and other information contained in the applicable prospectus supplement or free writing prospectus accompanying this prospectus before acquiring any of such securities.


FORWARD-LOOKING STATEMENTS

        Statements in this prospectus, including the documents that are incorporated by reference in this prospectus and any accompanying prospectus supplement, that are not historical facts are "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act") and Section 21E of the Exchange Act. These forward-looking statements are based on our current intent, belief and expectations. We claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 for all forward-looking statements. These statements are often, but not always, made through the use of words or phrases such as "anticipate," "believes," "can," "could," "may," "predicts," "potential," "should," "will," "estimate," "plans," "projects," "continuing," "ongoing," "expects," "intends" and similar words or phrases. Accordingly, these statements are only predictions and involve estimates, known and unknown risks, and assumptions and uncertainties that could cause actual results to differ materially from those expressed in such statements. Our actual results could differ materially from those anticipated in such forward-looking statements as a result of several factors more fully described in the section titled "Risk factors" and elsewhere in this prospectus as well as the additional risks described in our filings with the Securities and Exchange Commission (the "SEC").

        All forward-looking statements are necessarily only estimates of future results, and there can be no assurance that actual results will not differ materially from expectations, and, therefore, you are cautioned not to place undue reliance on such statements. Any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events.

        You should carefully read this prospectus, any prospectus supplement, and the documents incorporated by reference in their entirety. They contain information that you should consider when making your investment decision.


ABOUT THIS PROSPECTUS

        This prospectus is part of a registration statement on Form S-3 that we filed with the SEC utilizing a "shelf" registration process. Under this shelf process, we may sell any combination of securities from time to time in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we or parties acting on our behalf will provide a prospectus supplement and/or free writing prospectus that will contain specific information about the terms of that offering and the securities being sold in that offering. The applicable prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement and any free writing prospectus prepared by us or on our behalf, together with the documents incorporated by reference set forth below under the heading "Incorporation by Reference."

        Any statements in this prospectus, in any accompanying prospectus supplement or in any free writing prospectus concerning the provisions of any document are not complete. In each instance,

3

Table of Contents

reference is made to the copy of that document filed or incorporated or deemed to be incorporated by reference as an exhibit to the registration statement of which this prospectus is a part or otherwise filed with the SEC. Each statement concerning the provisions of any document is qualified in its entirety by reference to the document so filed.


WHERE YOU CAN FIND MORE INFORMATION

        This prospectus is a part of a registration statement on Form S-3 that we filed with the SEC, but the registration statement includes additional information and also attaches exhibits that are referenced in this prospectus. You can review a copy of the registration statement available on the SEC's web site at www.sec.gov.

        We are subject to the informational requirements of the Exchange Act, and, in accordance with the Exchange Act, file annual, quarterly and current reports, proxy and information statements and other information with the SEC. You may read and copy the material we file with the SEC at the SEC's public reference room in Washington, D.C. at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You can also request copies of those documents, upon payment of prescribed fees, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. Our SEC filings are also available to the public free of charge on the SEC's website at www.sec.gov.

        Our filings with the SEC are also available free of charge on our website at www.airleasecorp.com. The contents of our website are not incorporated by reference into this prospectus. You may also request a copy of our SEC filings, at no cost, by writing or telephoning our General Counsel and Corporate Secretary at:

Air Lease Corporation
General Counsel and Corporate Secretary
2000 Avenue of the Stars, Suite 1000N
Los Angeles, California 90067
(310) 553-0555


INCORPORATION BY REFERENCE

        This prospectus "incorporates by reference" certain information we file with the SEC under the Exchange Act. This means that we are disclosing important information to you by referring you to these filings. The information we incorporate by reference is considered a part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede this information.

        Any statement contained in a document incorporated or considered to be incorporated by reference in this prospectus shall be considered to be modified or superseded for purposes of this prospectus to the extent a statement contained in this prospectus or in any other subsequently filed document that is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement.

        We incorporate by reference the following documents that we have filed with the SEC, except to the extent that information in such documents is updated or superseded by information contained in this prospectus:

4

Table of Contents

        We are not incorporating by reference in this prospectus any information furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items.

        In addition, we incorporate by reference any future filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination of the offering of the securities offered by this prospectus. You may request copies, at no cost, of any and all of the documents that are incorporated by reference in this prospectus, including any future filings, by writing or telephoning our General Counsel and Corporate Secretary at the address and telephone number set forth above under "Where You Can Find More Information."

        These filings can also be obtained through the SEC as described above or, with respect to certain of these documents, at our website at www.airleasecorp.com. Except for the documents described above, information included or referred to on, or otherwise accessible through, our website is not incorporated by reference in this prospectus.


DESCRIPTION OF AIR LEASE CORPORATION

        Air Lease Corporation is an aircraft leasing company based in Los Angeles, California. We are principally engaged in purchasing commercial aircraft and leasing them to airlines around the world to generate attractive returns on equity. We lease aircraft to airlines pursuant to net operating leases that require the lessee to pay for maintenance, insurance, taxes and all other aircraft operating expenses during the lease term. For additional information about our business, operations and financial results, see the documents listed under "Incorporation by Reference."

5

Table of Contents

        Our principal executive office is located at 2000 Avenue of the Stars, Suite 1000N, Los Angeles, California 90067. Our telephone number is (310) 553-0555 and our website is www.airleasecorp.com. Information included or referred to on, or otherwise accessible through, our website is not intended to form a part of or be incorporated by reference into this prospectus.

RATIO OF EARNINGS TO FIXED CHARGES

(in thousands, except ratio)
  Six months ended
June 30, 2012 		  Year ended
December 31, 2011 		  For the period
from inception to
December 31, 2010 		 
 
  (unaudited)
   
   
 

Earnings :

                   

Net income (loss)

  $ 55,099   $ 53,232   $ (52,040 )

Add:

                   

Provision (benefit) for income taxes

    30,395     29,609     (8,875 )

Fixed charges

    72,039     68,797     53,673  

Less:

                   

Capitalized interest

    (8,631 )   (10,390 )   (1,769 )
               

Earnings (loss) as adjusted (A)

  $ 148,902   $ 141,248   $ (9,011 )
               

Fixed charges

                   

Interest expense

  $ 63,018   $ 57,692   $ 51,743  

Capitalized interest

    8,631     10,390     1,769  

Interest factors of rents(1)

    390     715     161  
               

Fixed charges as adjusted (B)

  $ 72,039   $ 68,797   $ 53,673  
               

Ratio of earnings (loss) to fixed charges ((A) divided by (B))(2)

    2.07     2.05     —  
(1)
Estimated to be 1 / 3 of rent expense.

(2)
For the period from inception to December 31, 2010, earnings were insufficient to cover fixed charges by $62.7 million.


USE OF PROCEEDS

        Unless we otherwise specify in the applicable prospectus supplement, the net proceeds we receive from the sale of the securities offered by this prospectus and the accompanying prospectus supplement will be used for general corporate purposes or the repayment of indebtedness. The net proceeds may be invested temporarily or applied to repay debt until they are used for their stated purpose or for general corporate purposes.


DESCRIPTION OF DEBT SECURITIES

        We may issue debt securities on a senior basis under an indenture, dated as of October 11, 2012, by and among the Company and Deutsche Bank Trust Company Americas (the "trustee"), as may be amended and supplemented from time to time.

        The following summary of the terms of our debt securities and the indenture sets forth certain general terms that apply to the debt securities, except to the extent modified with respect to one or more series of debt securities to be issued under the indenture. The particular terms of any series of debt securities will be described in the prospectus supplement and/or free writing prospectus relating to those debt securities. To the extent that any description in a prospectus supplement or in a free writing prospectus of particular terms of debt securities or of the indenture differs from this description, this

6

Table of Contents

description will be deemed to have been superseded by the description in that prospectus supplement or in that free writing prospectus in respect of those particular terms of the debt securities or the indenture.

        We have filed the indenture, and will file the forms of certificates evidencing any debt securities, with the SEC as exhibits to the registration statement, of which this prospectus forms a part, or as exhibits to documents that are or will be incorporated by reference in this prospectus. We urge you to read these documents before you invest in the debt securities. This summary is not complete, and is subject, and qualified in its entirety by reference, to all the provisions of the indenture and the certificates evidencing the debt securities. Some terms used in the following summary and not defined have the meanings given to those terms in the indenture.

        For purposes of this "Description of Debt Securities," references to "the Company," "we," "our," and "us" refer only to Air Lease Corporation and not to its subsidiaries.

Provisions Applicable to Indenture

General

        The indenture does not limit the amount of debt securities that may be issued thereunder, nor does it limit the amount of other debt or other securities that we may issue. The indenture provides that we may issue debt securities thereunder from time to time in one or more series and permits us to establish the terms of the debt securities of each series at the time of issuance.

        Under the indenture, we may, without the consent of the holders of any debt securities under the indenture, from time in the future "reopen" any series of debt securities and issue additional debt securities of that series. The debt securities of a series and any additional debt securities of that series that we may issue in the future upon a reopening will constitute together a single series of debt securities under the indenture. This means that, in circumstances where the indenture provides for the holders of debt securities of any series to vote or take any action, the original debt securities of a series, together with any additional debt securities of that series that we may issue by reopening the series, will vote or take that action as a single class.

Terms

        The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:

7

Table of Contents

Guarantee of Debt Securities

        The debt securities of a particular series may be guaranteed on a senior basis upon issuance of the debt securities of that series or, if the terms of the debt securities of that series so provide, upon the occurrence of certain events. The guarantors of debt securities of a particular series, if any, will unconditionally and irrevocably guarantee the payment when due (whether at stated maturity, by acceleration or otherwise) of all of our obligations to pay principal, interest and premium on the debt securities of that series pursuant to a guarantee to be endorsed on or otherwise provided for the debt securities of that series.

Ranking

        The debt securities will be our senior obligations and will rank pari passu in right of payment with all of our unsubordinated indebtedness and will be senior in right of payment to all of our subordinated indebtedness.

Consolidation, Merger and Sale of Assets

        Except as otherwise provided in the indenture or the debt securities, we may not (A) merge into or consolidate with any other entity, or (B) convey, transfer or lease our properties and assets substantially as an entirety to any individual or entity, unless, in the case of clauses (A) and (B) above, (x) the successor entity (if not the Company) shall (i) be a corporation, partnership, limited liability company, trust or similar entity organized under the laws of the United States of America, any State of the United States or the District of Columbia, and (ii) expressly assume by supplemental indenture the due and punctual payment of the principal of and any premium and interest on the debt securities and the performance of our obligations under the indenture, and (y) immediately after giving effect to such transaction, no default or event of default with respect to the debt securities of any series shall have occurred and be continuing.

8

Table of Contents

Events of Default

        Except as otherwise provided under the terms of a series of debt securities, the following are events of default with respect to a series of debt securities:

        If an event of bankruptcy, insolvency or liquidation relating to us or a guarantor of the debt securities of a particular series that constitutes an event of default with respect to such series has occurred, the principal amount payable under the indenture on the debt securities of such series will become immediately due and payable. If any other event of default with respect to a series of debt securities shall occur and be continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of such series may declare the principal amount payable under the indenture on the debt securities of such series to be due and payable.

Defeasance

        If the terms of a series of debt securities so provide, our obligations on the debt securities of such series (subject to survival of certain provisions of the indenture) and each guarantor's obligations with respect to such debt securities under its guarantee of such debt securities, will terminate if we irrevocably deposit or cause to be deposited with the trustee in trust for the benefit of the holders of such debt securities:

in each case sufficient to pay each installment of principal and interest on such debt securities or to pay principal and interest on such securities on the applicable redemption date.

9

Table of Contents

        The defeasance of the debt securities of a particular series is subject to certain other conditions, including, without limitation,

Modification and Waiver

Modification of Indenture

        The indenture provides that we, any guarantor and the trustee may, without the consent of any holders of debt securities, enter into supplemental indentures for the purposes of, among other things, adding to our covenants, adding additional events of default and curing ambiguities or inconsistencies in the indenture. We, any guarantor and the trustee may, without the consent of any holders of debt securities, also make other changes to the indenture that do not have a material adverse effect on the interests of the holders of the outstanding debt securities of the applicable series.

        In addition, modifications and amendments of the indenture and/or any guarantee of debt securities may be made by us, any applicable guarantor and the trustee with the consent of the holders of more than 50% of the aggregate principal amount of the outstanding debt securities of each series affected by such modification or amendment, provided, however, that no such modification or amendment may, without the consent of each holder of outstanding debt securities affected thereby,

Waiver of Default

        The holders of not less than a majority of aggregate principal amount of the outstanding debt securities of the series affected by the default may, on behalf of the holders of all such debt securities of such series, waive any past default under the indenture with respect to all of the outstanding debt

10

Table of Contents

securities of such series except a default in the payment of principal or any premium or interest on such debt securities and a default in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of each holder of the outstanding debt securities of such series affected.

Payment and Paying Agents

        Payments on the debt securities of a particular series will be made at the office or agency maintained by us for that purpose in the place of payment specified for such securities (or, if we fail to maintain such office or agency, at the corporate trust office of the trustee). At our option, however, we may make payments of interest by check mailed to the holder's registered address or, with respect to global notes, by wire transfer. Interest payments made on scheduled interest payment dates with respect to a particular debt security will be paid to the person in whose name such debt security is registered at the close of business on the record date for the interest payment.

        Unless we inform you otherwise, the trustee will be designated as our paying agent for payments on the debt securities. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts.

        Subject to the requirements of applicable abandoned property law, the trustee and paying agent shall pay to us upon written request any money held by them for payments on the debt securities that remain unclaimed for two years after the date upon which that payment has become due. After payment to us, holders entitled to the money must look to us for payment. In that case, all liability of the trustee or paying agent with respect to that money will cease.

Notices

        Except as otherwise described herein, notice to registered holders of the notes will be given by mail to the addresses as they appear in the security register. Notices will be deemed to have been given on the date of such mailing. As long as the debt securities of any series are in the form of one or more global securities, notice to holders of such series may be made electronically in accordance with the procedures of the applicable depositary.

Governing Law

        The indenture, the debt securities and each guarantee, if any, will be governed by and construed in accordance with the laws of the State of New York.


DESCRIPTION OF CAPITAL STOCK

        We are authorized to issue 500,000,000 shares of Class A Common Stock, $0.01 par value per share ("Class A Common Stock"), 10,000,000 shares of Class B Non-Voting Common Stock, $0.01 par value per share ("Class B Non-Voting Common Stock," and together with the Class A Common Stock, the "common stock"), and 50,000,000 shares of preferred stock, $0.01 par value per share ("preferred stock"), the rights and preferences of which may be established from time to time by our board of directors. As of October 5, 2012, 99,417,998 shares of Class A Common Stock were outstanding and 1,829,339 shares of Class B Non-Voting Common Stock were outstanding. We have reserved 8,193,088 shares of Class A Common Stock for issuance under the Amended and Restated Air Lease Corporation 2010 Equity Incentive Plan.

        The following summary is a description of our capital stock and provisions of our restated certificate of incorporation and amended and restated bylaws. This information does not purport to be complete and is subject to, and qualified in its entirety by reference to, the terms of our restated certificate of incorporation and amended and restated bylaws and the provisions of applicable Delaware law.

11

Table of Contents

Common Stock

        Our restated certificate of incorporation provides that, except with respect to voting rights and conversion rights, the Class A Common Stock and Class B Non-Voting Common Stock shall be treated equally and identically.

        Except as otherwise required by law, as otherwise described in this paragraph or as otherwise provided in any certificate of designation for any series of preferred stock, the holders of Class A Common Stock possess all voting power for the election of our directors and all other matters requiring stockholder action, except with respect to amendments to our restated certificate of incorporation that alter or change the powers, preferences, rights or other terms of any outstanding preferred stock if the holders of such affected series of preferred stock are entitled to vote on such an amendment. Holders of our Class A Common Stock are entitled to one vote for each share held and will not have cumulative voting rights in connection with the election of directors. Accordingly, holders of a majority of the shares of Class A Common Stock entitled to vote in any election of directors are able to elect all of the directors standing for election. Holders of Class B Non-Voting Common Stock are not entitled to any vote, other than with respect to amendments to the terms of the Class B Non-Voting Common Stock that would significantly and adversely affect the rights or preferences of the Class B Non-Voting Common Stock, including, without limitation with respect to the convertibility thereof.

        Except as otherwise provided by law, our restated certificate of incorporation or our amended and restated bylaws, all matters to be voted on by our stockholders require approval by a majority of the shares present in person or by proxy at a meeting of stockholders and entitled to vote on the subject matter. Any stockholder wishing to propose for election as director someone who is not proposed by our board will be required to give notice of the intention to propose the person for election, in compliance with the advance notice provisions of our amended and restated bylaws. Our amended and restated bylaws provide that such stockholder nominees shall be elected by a plurality of the votes cast at any meeting of stockholders.

        Each share of Class B Non-Voting Common Stock is convertible into a share of Class A Common Stock at the option of the holder, except that each share of Class B Non-Voting Common Stock will only become convertible at the time it is transferred to a third party unaffiliated with Société Générale S.A., which wholly owns Genefinance S.A., the holder of record of all of the outstanding shares of Class B Non-Voting Common Stock.

        Any amendment to the terms of the Class A Common Stock shall apply equally to the Class B Non-Voting Common Stock and the Class B Non-Voting Common Stock shall have all of the same rights as the Class A Common Stock, except as to voting and convertibility, and shall be treated equally in all respects with the Class A Common Stock, including, without limitation, with respect to dividends.

        Subject to any preferential rights of any then outstanding preferred stock, holders of common stock are entitled to receive any dividends that may be declared by our board of directors out of legally available funds. We have no current plans to declare or pay any dividends to our stockholders.

        In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to receive proportionately any of our assets remaining after the payment of liabilities and any preferential rights of the holders of our then outstanding preferred stock.

        Except as described in this prospectus, holders of common stock will have no preemptive, subscription, redemption or conversion rights. The outstanding shares of common stock are validly issued and fully paid. The rights, preferences and privileges of holders of common stock will be subject to those of the holders of any shares of our preferred stock we may issue in the future.

12

Table of Contents

Preferred Stock

        Our restated certificate of incorporation authorizes our board of directors to issue and to designate the terms of one or more classes or series of preferred stock. The rights with respect to a class or series of preferred stock may be greater than the rights attached to our common stock. It is not possible to state the actual effect of the issuance of any shares of our preferred stock on the rights of holders of our common stock until our board of directors determines the specific rights attached to that class or series of preferred stock.

Certain Anti-Takeover Matters

Special meeting of stockholders

        Our restated certificate of incorporation and our amended and restated bylaws provide that special meetings of our stockholders may be called only by the Chairman of the board of directors, by our Chief Executive Officer or by a majority vote of our entire board of directors.

No stockholder action by written consent

        Our restated certificate of incorporation and our amended and restated bylaws prohibit stockholder action by written consent.

Advance notice requirements for stockholder proposals and director nominations

        Our amended and restated bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder's notice must be delivered to our principal executive offices not less than 90 days nor more than 120 days prior to the meeting. Our amended and restated bylaws also specify certain requirements as to the form and content of a stockholder's notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.

Stockholder-initiated bylaw amendments

        Our amended and restated bylaws may be adopted, amended, altered or repealed by stockholders only upon approval of at least two-thirds of the voting power of all the then outstanding shares of the common stock. Additionally, our restated certificate of incorporation provides that our amended and restated bylaws may be adopted, amended or repealed by the board of directors by a majority vote.

Authorized but unissued shares

        Our authorized but unissued shares of common stock are available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

Supermajority voting

        The vote of the holders of not less than 66 2 / 3 % of the votes entitled to be cast is required to adopt any amendment to our restated certificate of incorporation or amended and restated bylaws as well as to remove a director from office. The foregoing provisions may discourage attempts by others to acquire control of us without negotiation with our board of directors. This enhances our board of directors' ability to attempt to promote the interests of all of our stockholders. However, to the extent

13

Table of Contents

that these provisions make us a less attractive takeover candidate, they may not always be in our best interests or in the best interests of our stockholders.

Section 203 of the Delaware General Corporation Law

        We have not opted out of Section 203 of the Delaware General Corporation Law. Subject to certain exceptions, Section 203 of the Delaware General Corporation Law prohibits a public Delaware corporation from engaging in a business combination (as defined in such section) with an "interested stockholder" (defined generally as any person who beneficially owns 15% or more of the outstanding voting stock of such corporation or any person affiliated with such person) for a period of three years following the time that such stockholder became an interested stockholder, unless (i) prior to such time the board of directors of such corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; (ii) upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of such corporation outstanding at the time the transaction commenced (excluding for purposes of determining the voting stock of such corporation outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (A) by persons who are directors and also officers of such corporation and (B) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer); or (iii) on or subsequent to such time the business combination is approved by the board of directors of such corporation and authorized at a meeting of stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock of such corporation not owned by the interested stockholder.

Forum selection clause in amended and restated bylaws

        On February 15, 2011, our board of directors approved an amendment and restatement of our bylaws to provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or its stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or our restated certificate of incorporation or bylaws, or (iv) any other action asserting a claim governed by the internal affairs doctrine. Our amended and restated bylaws further provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock shall be deemed to have notice of and to have consented to the provisions described above.

Limitation on liability and indemnification of directors and officers

        Our restated certificate of incorporation and amended and restated bylaws provide that our directors and officers will be indemnified by us to the fullest extent authorized by Delaware law as it currently exists or may in the future be amended, against all expenses and liabilities reasonably incurred in connection with their service for or on our behalf. In addition, our restated certificate of incorporation provides that our directors will not be personally liable for monetary damages to us or our stockholders for breaches of their fiduciary duty as directors.

        In addition to the indemnification provided by our restated certificate of incorporation and amended and restated bylaws, we have entered into agreements to indemnify our directors and executive officers. These agreements, among other things and subject to certain standards to be met, require us to indemnify these directors and officers for certain expenses, including attorneys' fees, judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in our right, arising out of that person's services as a director or officer of us or any of our subsidiaries or any other company or enterprise to which the person provides services at

14

Table of Contents

our request. These agreements also require us to advance expenses to these officers and directors for defending any such action or proceeding, subject to an undertaking to repay such amounts if it is ultimately determined that such director or officer was not entitled to be indemnified for such expenses.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Stock exchange listing symbol

        Our Class A Common Stock is listed on the NYSE under the symbol "AL." Our Class B Non-Voting Common Stock is not currently listed on any national securities exchange or market system.

Transfer agent and registrar

        American Stock Transfer and Trust Company is the transfer agent and registrar for our common stock.


DESCRIPTION OF WARRANTS

        We may issue warrants for the purchase of debt securities, preferred stock, depositary shares or Class A Common Stock. Warrants may be issued independently or together with our debt securities, preferred stock, depositary shares or Class A Common Stock and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. A copy of the warrant agreement will be filed with the SEC in connection with any offering of warrants.

        The prospectus supplement relating to a particular issue of warrants to purchase debt securities, preferred stock, depositary shares or Class A Common Stock will describe the terms of those warrants, including the following:

15

Table of Contents


DESCRIPTION OF DEPOSITARY SHARES

        We may issue depositary shares, each of which will represent a fractional interest in a share of a particular series of preferred stock as specified in the applicable prospectus supplement and/or free writing prospectus. We may issue depositary shares rather than fractional shares of preferred stock of any series. Subject to the terms of the applicable deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of preferred stock underlying that depositary share, to all rights and preferences of the preferred stock underlying that depositary share. Those rights may include dividend, voting, redemption and liquidation rights.

        The shares of preferred stock underlying the depositary shares will be deposited with a depositary under a deposit agreement between us and the depositary. The depositary will be a bank or trust company selected by us. The depositary will also act as the transfer agent, registrar and, if applicable, dividend disbursing agent for the depositary shares. We anticipate that we will enter into a separate deposit agreement for the depositary shares representing fractional interests in preferred stock of each series.

        Holders of depositary receipts evidencing the depositary shares will be deemed to agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.

        The following is a summary of selected terms of the depositary shares and the related depositary receipts and deposit agreement. The deposit agreement, the depositary receipts, our restated certificate of incorporation and the certificate of designation for the applicable series of preferred stock that have been, or will be, filed with the SEC will set forth all of the terms relating to each issue of depositary shares. To the extent that any particular terms of any depositary shares or the related depositary receipts or deposit agreement described in the applicable prospectus supplement or free writing prospectus differ from any of the terms described below, then the terms described below will be deemed to have been superseded by the applicable terms described in that prospectus supplement or free writing prospectus. The following summary of selected provisions of the depositary shares and the related depositary receipts and deposit agreement is not complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the applicable depositary receipts and deposit agreement, including terms defined in those documents.

16

Table of Contents

        Immediately following our issuance of shares of a series of preferred stock that will be offered as depositary shares, we will deposit the shares of preferred stock with the applicable depositary, which will then issue and deliver the depositary receipts. Depositary receipts will only be issued evidencing whole depositary shares. A depositary receipt may evidence any number of whole depositary shares.

Dividends

        The depositary will distribute all cash dividends or other cash distributions received relating to the series of preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant record date. The record date for the depositary shares will be the same date as the record date for the preferred stock.

        If there is a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution. However, if the depositary determines that the distribution cannot be made proportionately among the holders or that it is not feasible to make the distribution, the depositary may, with our approval, adopt another method for the distribution. The method may include selling the securities or property and distributing the net proceeds to the holders.

        The amount distributed in any of the foregoing cases will be reduced by any amounts required to be withheld by us or the depositary on account of taxes or other governmental charges.

Liquidation Preference

        If we voluntarily or involuntarily liquidate, dissolve or wind up, the holders of each depositary share will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.

Redemption

        If the series of preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary from the redemption, in whole or in part, of preferred stock held by the depositary. Whenever we redeem any preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock so redeemed. The depositary will mail the notice of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and not less than 35 nor more than 60 days prior to the date fixed for redemption of the preferred stock and the depositary shares. The redemption price per depositary share will be equal to the applicable fraction of the redemption price payable per share for the applicable series of preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or ratably as the depositary will decide.

        After the date fixed for redemption, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the moneys payable upon redemption and any moneys or other property to which the holders of the depositary shares were entitled upon the redemption, upon surrender to the depositary of the depositary receipts evidencing the depositary shares.

Voting

        Upon receipt of notice of any meeting at which the holders of preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts representing the preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights

17

Table of Contents

pertaining to the amount of preferred stock underlying that holder's depositary shares. The record date for the depositary shares will be the same date as the record date for the preferred stock. The depositary will try, as far as practicable, to vote the preferred stock underlying the depositary shares in a manner consistent with the instructions of the holders of the depositary receipts. We will agree to take all action which may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote the preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts.

Withdrawal of Preferred Stock

        Owners of depositary shares are entitled, upon surrender of depositary receipts at the applicable office of the depositary and payment of any unpaid amount due the depositary, to receive the number of whole shares of preferred stock underlying the depositary shares. Partial shares of preferred stock will not be issued. After the withdrawal of shares of preferred stock as described in the preceding sentence, the holders of those shares of preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depositary receipts evidencing depositary shares for those shares of preferred stock.

Amendment and Termination of Deposit Agreement

        The form of depositary receipt evidencing the depositary shares and any provision of the applicable deposit agreement may be amended at any time and from time to time by agreement between us and the depositary. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other than any change in fees, will not be effective unless the amendment has been approved by at least a majority of the depositary shares then outstanding. The deposit agreement automatically terminates if:

Charges of Depositary

        We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will also pay charges of the depositary in connection with the initial deposit of the preferred stock and the initial issuance of the depositary shares and receipts, any redemption of the preferred stock and all withdrawals of preferred stock by owners of depositary shares. Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and certain other charges as provided in the deposit agreement. In certain circumstances, the depositary may refuse to transfer depositary shares, withhold dividends and distributions, and sell the depositary shares evidenced by the depositary receipt, if the charges are not paid.

Reports to Holders

        The depositary will forward to the holders of depositary receipts all reports and communications we deliver to the depositary that we are required to furnish to the holders of the preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the applicable office of the depositary—and at other places as it thinks is advisable—any reports and communications we deliver to the depositary as the holder of preferred stock.

18

Table of Contents

Liability and Legal Proceedings

        Neither we nor the depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing our obligations under the deposit agreement. Our obligations and those of the depositary will be limited to performance in good faith of our duties under the deposit agreement. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We and the depositary may rely on written advice of counsel or accountants, on information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information and on documents believed to be genuine and to have been signed or presented by the proper persons.

Resignation and Removal of Depositary

        The depositary may resign at any time by delivering a notice to us of its election to do so. We may also remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or removal. In addition, the successor depositary must be a bank or trust company having its principal office in the United States and must have a combined capital and surplus of at least $150,000,000.


DESCRIPTION OF RIGHTS

        The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the general features of the rights that we may offer under this prospectus. We may issue rights to our stockholders to purchase shares of our Class A Common Stock and/or any of the other securities offered hereby. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. When we issue rights, we will provide the specific terms of the rights and the applicable rights agreement in a prospectus supplement. Because the terms of any rights we offer under a prospectus supplement may differ from the terms we describe below, you should rely solely on information in the applicable prospectus supplement if that summary is different from the summary in this prospectus. We will incorporate by reference into the registration statement of which this prospectus is a part the form of rights agreement that describes the terms of the series of rights we are offering before the issuance of the related series of rights.

        If we may issue any series of rights, certain terms of that series of rights will be described in the applicable prospectus supplement, including, without limitation, the following:

    •
    the date of determining the stockholders entitled to the rights distribution;

    •
    the securities purchasable upon exercise of the rights;

    •
    the exercise price;

    •
    the aggregate number of rights issued;

    •
    the date, if any, on and after which the rights will be separately transferable;

    •
    the date on which the right to exercise the rights will commence, and the date on which the right will expire;

    •
    a discussion of certain United States federal income tax considerations applicable to the rights; and

    •
    any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights.

19

Table of Contents

        Each right will entitle the holder of rights to purchase for cash the securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will be void.

        Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable prospectus supplement.


DESCRIPTION OF PURCHASE CONTRACTS

        The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the general features of the purchase contracts that we may issue under this prospectus. While the features we have summarized below will generally apply to any future purchase contracts we may issue under this prospectus, we will describe the particular terms of any purchase contracts that we may issue in more detail in the applicable prospectus supplement. The specific terms of any purchase contracts may differ from the description provided below as a result of negotiations with third parties in connection with the issuance of those purchase contracts, as well as for other reasons. Because the terms of any purchase contracts we offer under a prospectus supplement may differ from the terms we describe below, you should rely solely on information in the applicable prospectus supplement if that summary is different from the summary in this prospectus.

        We will incorporate by reference into the registration statement of which this prospectus is a part the form of any purchase contract that we may issue under this prospectus before the sale of the related purchase contract. We urge you to read the applicable prospectus supplements related to the specific purchase contracts being offered, as well as the complete instruments that contain the terms of the securities that are subject to those purchase contracts. Certain of those instruments, or forms of those instruments, have been, or will be, filed as exhibits to the registration statement of which this prospectus is a part, and supplements to those instruments or forms may be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the SEC.

        We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or variable number of our securities at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying number of our securities. Purchase contracts will be issued pursuant to one or more purchase contract agreements to be entered into between us and a bank or trust company, as purchase contract agent. When we issue purchase contracts, we will provide the specific terms of the purchase contracts in a prospectus supplement. A copy of the applicable form of purchase contract will be included as an exhibit to a report we file with the SEC incorporated by reference herein.

        If we offer any purchase contracts, certain terms of that series of purchase contracts will be described in the applicable prospectus supplement, including, without limitation, the following:

    •
    the price of the securities or other property subject to the purchase contracts (which may be determined by reference to a specific formula described in the purchase contracts);

    •
    whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase contract and one or more of our other securities, including U.S. Treasury securities, securing the holder's obligations under the purchase contract;

20

Table of Contents

    •
    any requirement for us to make periodic payments to holders or vice versa, and whether the payments are unsecured or pre-funded;

    •
    any provisions relating to any security provided for the purchase contracts;

    •
    whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;

    •
    whether the purchase contracts are to be prepaid or not;

    •
    whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract;

    •
    any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;

    •
    a discussion of certain United States federal income tax considerations applicable to the purchase contracts;

    •
    whether the purchase contracts will be issued in fully registered or global form; and

    •
    any other terms of the purchase contracts and any securities subject to such purchase contracts.


DESCRIPTION OF UNITS

        The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. We may issue units consisting of two or more other constituent securities offered hereby. These units may be issuable as, and for a specified period of time may be transferable only as a single security, rather than as the separate constituent securities comprising such units. Units will be issued pursuant to one or more unit agreements to be entered into between us and a bank or trust company, as unit agent. While the features we have summarized below will generally apply to any units we may offer under this prospectus, we will describe the particular terms of any units that we may offer in more detail in the applicable prospectus supplement. The specific terms of any units may differ from the description provided below as a result of negotiations with third parties in connection with the issuance of those units, as well as for other reasons. Because the terms of any units we offer under a prospectus supplement may differ from the terms we describe below, you should rely solely on information in the applicable prospectus supplement if that summary is different from the summary in this prospectus.

        We urge you to read the applicable prospectus supplement related to the specific units being offered, as well as the complete instruments that contain the terms of the securities that comprise those units. Certain of those instruments, or forms of those instruments, have been, or will be, filed as exhibits to the registration statement of which this prospectus is a part, and supplements to those instruments or forms may be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the SEC.

        If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:

21

Table of Contents


PLAN OF DISTRIBUTION

        We may sell the securities:

        We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in a prospectus supplement.


LEGAL MATTERS

        Munger, Tolles & Olson LLP, our outside counsel, will issue to us an opinion about the validity of the offered securities.


EXPERTS

        The consolidated financial statements of Air Lease Corporation and its subsidiaries as of December 31, 2011 and 2010 and the year ended December 31, 2011 and the period from inception to December 31, 2010, appearing in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein and upon the authority of said firm as experts in accounting and auditing.

22

Table of Contents


PART II.

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14.     Other Expenses of Issuance and Distribution.

        The following is a statement of the estimated expenses (other than underwriting compensation) to be incurred by us in connection with the securities registered hereby.

SEC registration fee

    (1 )

Legal fees

    (2 )

Accounting fees

    (2 )

Trustees' fees

    (2 )

Printing and engraving expenses

    (2 )

Blue sky fees and expenses

    (2 )

Miscellaneous

    (2 )

Total

    (2 )
(1)
We are registering an indeterminate amount of securities under this registration statement and in accordance with Rules 456(b) and 457(r), we are deferring payment of the registration fee.

(2)
An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.

Item 15.     Indemnification of Directors and Officers.

        Section 102(b)(7) of the Delaware General Corporation Law ("DGCL") allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.

        Our restated certificate of incorporation provides for this limitation of liability.

        Section 145 of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be

II-1

Table of Contents

in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.

        Our second amended and restated bylaws provide for the indemnification of officers and directors of our Company consistent with Section 145 of the DGCL.

        The indemnification rights set forth above are not exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our restated certificate of incorporation, our amended and restated bylaws, agreement, vote of stockholders or directors or otherwise. We also entered into indemnification agreements with our directors that generally provide for mandatory indemnification to the fullest extent permitted by law.

        Delaware law also provides that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other entity, against any liability asserted against and incurred by such person, whether or not the corporation would have the power to indemnify such person against such liability. We maintain, at our expense, an insurance policy that insures our officers and directors, subject to customary exclusions and deductions, against specified liabilities that may be incurred in those capacities.

Item 16.     Exhibits.

        The exhibits to this registration statement are listed in the Exhibit Index that appears immediately following the signature pages of this registration statement. Such Exhibit Index is hereby incorporated in this Item 16 by reference.

Item 17.     Undertakings.

        (a)   The undersigned registrant hereby undertakes:

            (1)   To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

                (i)  To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

               (ii)  To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

              (iii)  To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

II-2

Table of Contents

    provided , however , that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

            (2)   That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

            (3)   To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

            (4)   That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

              (A)  Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

              (B)  Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or

            (5)   That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

                (i)  Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

               (ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

II-3

Table of Contents

              (iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

              (iv)  Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

        (b)   The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

        (c)   The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.

        (d)   Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of a registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

II-4

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Los Angeles, State of California, on the 11 th day of October, 2012.

    AIR LEASE CORPORATION

 
 
By:
 
/s/ GREGORY B. WILLIS
        Name:   Gregory B. Willis
        Title:   Senior Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints Steven F. Udvar-Házy, John L. Plueger and Carol H. Forsyte, and each of them acting individually, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to execute for him and in his name, place and stead, in any and all capacities, any and all amendments (including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which registration is sought) to this registration statement as the attorney-in-fact and to file the same, with all exhibits thereto and any other documents required in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and their substitutes, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 
 
 
 
 
/s/ STEVEN F. UDVAR-HÁZY
Steven F. Udvar-Házy 		  Chairman and Chief Executive Officer (Principal Executive Officer)   October 11, 2012

/s/ JOHN L. PLUEGER
John L. Plueger
 
President, Chief Operating Officer and Director
 
October 11, 2012

/s/ GREGORY B. WILLIS
Gregory B. Willis
 
Senior Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
 
October 11, 2012

II-5

Table of Contents

Signature
 
Title
 
Date

 
 
 
 
 
/s/ JOHN G. DANHAKL
John G. Danhakl 		  Director   October 11, 2012

/s/ MATTHEW J. HART
Matthew J. Hart
 
Director
 
October 11, 2012

/s/ ROBERT A. MILTON
Robert A. Milton
 
Director
 
October 11, 2012

/s/ ANTONY P. RESSLER
Antony P. Ressler
 
Director
 
October 11, 2012

/s/ WILBUR L. ROSS, JR.
Wilbur L. Ross, Jr.
 
Director
 
October 11, 2012

/s/ IAN M. SAINES
Ian M. Saines
 
Director
 
October 11, 2012

/s/ DR. RONALD D. SUGAR
Dr. Ronald D. Sugar
 
Director
 
October 11, 2012

II-6

Table of Contents


EXHIBIT INDEX

Exhibit
Number
  Description
  1.1 * Form of Underwriting Agreement
        
  4.1 ‡ Restated Certificate of Incorporation of Air Lease Corporation
        
  4.2 § Second Amended and Restated Bylaws of Air Lease Corporation
        
  4.3 ‡ Form of Specimen Class A Common Stock Certificate
        
  4.4   Form of Indenture for Debt Securities
        
  4.5 * Form of Note
        
  4.6 * Form of Guarantee
        
  4.7 * Form of Certificate of Designation of Preferred Stock
        
  4.8 * Form of Certificate for Preferred Stock
        
  4.9 * Form of Deposit Agreement
        
  4.10 * Form of Warrant Agreement and Warrant Certificate
        
  4.11 * Form of Rights Agreement
        
  4.12 * Form of Purchase Contract
        
  4.13 * Form of Unit
        
  5.1   Opinion of Munger, Tolles & Olson LLP
        
  12.1   Computation of Ratio of Earnings to Fixed Charges
        
  23.1   Consent of Independent Registered Accounting Firm
        
  23.2   Consent of Munger, Tolles & Olson LLP (included in Exhibit 5.1)
        
  24.1   Power of Attorney (included in the signature pages hereto)
        
  25.1   Statement of Eligibility of Trustee, Deutsche Bank Trust Company Americas, on Form T-1
*
To be filed by amendment or incorporated by reference or, if applicable, pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939 if there is an offering of the specified securities.

‡
Incorporated by reference to the Company's Registration Statement on Form S-1 (File No. 333-171734), as amended, for the Company's initial public offering.

§
Incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2011, filed with the SEC on March 9, 2012.

II-7



Exhibit 4.4

 

 

AIR LEASE CORPORATION

 

(As Issuer)

 

TO

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

(As Trustee)

 

Indenture

 

Dated as of October 11, 2012

 

 


 

TABLE OF CONTENTS

 

 

 

Page

 

 

ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

1

 

 

Section 1.01.

Definitions

1

 

 

 

Section 1.02.

Compliance Certificates and Opinions

9

 

 

 

Section 1.03.

Form of Documents Delivered to Trustee

10

 

 

 

Section 1.04.

Acts of Holders; Record Dates

10

 

 

 

Section 1.05.

Notices, Etc., to Trustee, Company and Guarantor

13

 

 

 

Section 1.06.

Notice to Holders; Waiver

13

 

 

 

Section 1.07.

Conflict with Trust Indenture Act

14

 

 

 

Section 1.08.

Effect of Headings and Table of Contents

14

 

 

 

Section 1.09.

Successors and Assigns

14

 

 

 

Section 1.10.

Separability Clause

14

 

 

 

Section 1.11.

Benefits of Indenture

14

 

 

 

Section 1.12.

Governing Law

15

 

 

 

Section 1.13.

Legal Holidays

15

 

 

 

Section 1.14.

Immunity of Incorporators, Shareholders, Members, Officers and Directors

15

 

 

 

Section 1.15.

Waiver of Jury Trial

16

 

 

 

Section 1.16.

Force Majeure

16

 

 

 

Section 1.17.

Counterparts

16

 

 

 

Section 1.18.

PATRIOT Act

16

 

 

ARTICLE 2

SECURITY FORMS

16

 

 

Section 2.01.

Forms Generally

16

 

 

 

Section 2.02.

Form of Face of Security

17

 

 

 

Section 2.03.

Form of Reverse of Security

18

 

 

 

Section 2.04.

Form of Legend for Securities

22

 

 

 

Section 2.05.

Form of Trustee’s Certificate of Authentication

22

 

 

ARTICLE 3

THE SECURITIES

23

 

 

Section 3.01.

Amount Unlimited; Issuable in Series

23

 

 

 

Section 3.02.

Denominations

26

 

 

 

Section 3.03.

Execution, Authentication, Delivery and Dating

26

 

 

 

Section 3.04.

Temporary Securities

27

 

i


 

Section 3.05.

Registration, Registration of Transfer and Exchange; Certain Transfers and Exchanges

28

 

 

 

Section 3.06.

Mutilated, Destroyed, Lost and Stolen Securities

31

 

 

 

Section 3.07.

Payment of Interest; Interest Rights Preserved; Additional or Special Interest

32

 

 

 

Section 3.08.

Persons Deemed Owners

33

 

 

 

Section 3.09.

Cancellation

34

 

 

 

Section 3.10.

Computation of Interest

34

 

 

 

Section 3.11.

Execution of Securities Guarantee

34

 

 

 

Section 3.12.

CUSIP and ISIN Numbers

34

 

 

ARTICLE 4

SATISFACTION AND DISCHARGE

34

 

 

Section 4.01.

Satisfaction and Discharge of Indenture

34

 

 

 

Section 4.02.

Application of Trust Money

35

 

 

ARTICLE 5

REMEDIES

36

 

 

Section 5.01.

Events of Default

36

 

 

 

Section 5.02.

Acceleration of Maturity; Rescission and Annulment

37

 

 

 

Section 5.03.

Collection of Indebtedness and Suits for Enforcement by Trustee

38

 

 

 

Section 5.04.

Trustee May File Proofs of Claim

39

 

 

 

Section 5.05.

Trustee May Enforce Claims Without Possession of Securities

39

 

 

 

Section 5.06.

Application of Money Collected

40

 

 

 

Section 5.07.

Limitation on Suits

40

 

 

 

Section 5.08.

Unconditional Right of Holders To Receive Principal, Premium and Interest

41

 

 

 

Section 5.09.

Restoration of Rights and Remedies

41

 

 

 

Section 5.10.

Rights and Remedies Cumulative

41

 

 

 

Section 5.11.

Delay or Omission Not Waiver

41

 

 

 

Section 5.12.

Control by Holders

42

 

 

 

Section 5.13.

Waiver of Past Defaults

42

 

 

 

Section 5.14.

Undertaking for Costs

43

 

 

 

Section 5.15.

Waiver of Usury, Stay or Extension Laws

43

 

 

ARTICLE 6

THE TRUSTEE

43

 

 

Section 6.01.

Certain Duties and Responsibilities

43

 

 

 

Section 6.02.

Notice of Defaults

44

 

ii


 

Section 6.03.

Certain Rights of Trustee

45

 

 

 

Section 6.04.

Not Responsible for Recitals or Issuance of Securities

46

 

 

 

Section 6.05.

May Hold Securities

46

 

 

 

Section 6.06.

Money Held in Trust

46

 

 

 

Section 6.07.

Compensation and Reimbursement

47

 

 

 

Section 6.08.

Conflicting Interests

47

 

 

 

Section 6.09.

Corporate Trustee Required; Eligibility

47

 

 

 

Section 6.10.

Resignation and Removal; Appointment of Successor

48

 

 

 

Section 6.11.

Acceptance of Appointment by Successor

49

 

 

 

Section 6.12.

Merger, Conversion, Consolidation or Succession to Business

50

 

 

 

Section 6.13.

Preferential Collection of Claims Against Obligors

50

 

 

 

Section 6.14.

Appointment of Authenticating Agent

51

 

 

ARTICLE 7

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

52

 

 

Section 7.01.

Company To Furnish Trustee Names and Addresses of Holders

52

 

 

 

Section 7.02.

Preservation of Information; Communications to Holders

53

 

 

 

Section 7.03.

Reports by Trustee

53

 

 

 

Section 7.04.

Reports by Company and Guarantors

53

 

 

ARTICLE 8

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

54

 

 

Section 8.01.

The Company May Consolidate, Etc., Only on Certain Terms

54

 

 

 

Section 8.02.

Successor Substituted

54

 

 

ARTICLE 9

SUPPLEMENTAL INDENTURES

55

 

 

Section 9.01.

Supplemental Indentures Without Consent of Holders

55

 

 

 

Section 9.02.

Supplemental Indentures with Consent of Holders

56

 

 

 

Section 9.03.

Execution of Supplemental Indentures

57

 

 

 

Section 9.04.

Effect of Supplemental Indentures

58

 

 

 

Section 9.05.

Conformity with Trust Indenture Act

58

 

 

 

Section 9.06.

Reference in Securities to Supplemental Indentures

58

 

 

ARTICLE 10

COVENANTS

58

 

 

Section 10.01.

Payment of Principal, Premium and Interest

58

 

 

 

Section 10.02.

Maintenance of Office or Agency

58

 

 

 

Section 10.03.

Money for Securities Payments to Be Held in Trust

59

 

iii


 

Section 10.04.

Statement by Officers as to Default

60

 

 

 

Section 10.05.

Waiver of Certain Covenants

60

 

 

ARTICLE 11

REDEMPTION OF SECURITIES

60

 

 

Section 11.01.

Applicability of Article

60

 

 

 

Section 11.02.

Election To Redeem; Notice to Trustee

61

 

 

 

Section 11.03.

Selection by Trustee of Securities To Be Redeemed

61

 

 

 

Section 11.04.

Notice of Redemption

61

 

 

 

Section 11.05.

Deposit of Redemption Price

62

 

 

 

Section 11.06.

Securities Payable on Redemption Date

62

 

 

 

Section 11.07.

Securities Redeemed in Part

63

 

 

ARTICLE 12

SINKING FUNDS

63

 

 

Section 12.01.

Applicability of Article

63

 

 

 

Section 12.02.

Satisfaction of Sinking Fund Payments with Securities

63

 

 

 

Section 12.03.

Redemption of Securities for Sinking Fund

64

 

 

ARTICLE 13

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

64

 

 

Section 13.01.

Company’s Option To Effect Legal Defeasance or Covenant Defeasance

64

 

 

 

Section 13.02.

Legal Defeasance and Discharge

64

 

 

 

Section 13.03.

Covenant Defeasance

65

 

 

 

Section 13.04.

Conditions to Legal Defeasance or Covenant Defeasance

65

 

 

 

Section 13.05.

Deposited Money and U.S. Government Obligations To Be Held in Trust; Miscellaneous Provisions

67

 

 

 

Section 13.06.

Reinstatement

67

 

iv


 

CROSS-REFERENCE TABLE*

 

Certain Sections of this Indenture relating to Sections 310 through 318,

inclusive, of the Trust Indenture Act of 1939

 

Trust Indenture Act Section

 

Indenture Section

 

 

 

310(a)(1)

 

6.09

(a)(2)

 

6.09

(a)(3)

 

N.A.

(a)(4)

 

N.A.

(a)(5)

 

6.09

(b)

 

6.08; 6.10; 7.03

311(a)

 

6.13

(b)

 

6.13

312(a)

 

7.01; 7.02

(b)

 

7.02

(c)

 

7.02

313(a)

 

7.03

(b)

 

7.03

(c)

 

7.03

(d)

 

7.03

314(a)

 

7.04; 10.04

(b)

 

7.04

(c)

 

1.02

(d)

 

7.04

(e)

 

1.02

315(a)

 

6.01(a)

(b)

 

6.02

(c)

 

6.01(b)

(d)

 

6.01(c)

(e)

 

5.14

316(a)(last sentence)

 

1.01 Definition of “Outstanding”

(a)(1)(A)

 

5.12

(a)(1)(B)

 

5.13

(a)(2)

 

N.A.

(b)

 

5.08

(c)

 

1.04

317(a)(1)

 

5.03

(a)(2)

 

5.04

(b)

 

10.03

318(a)

 

1.07

 

N.A. means not applicable.

 

*  This Cross-Reference Table shall not, for any purpose, be deemed part of the Indenture.

 

v


 

INDENTURE, dated as of October 11, 2012, between Air Lease Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “ Company ”), having its principal office at 2000 Avenue of the Stars, Los Angeles, California, and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee.

 

Recitals

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (herein called the “ Securities ”), to be issued in one or more series as provided in this Indenture.

 

All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

Each party agrees as follows for the benefit of each other and for the benefit of all Holders:

 

ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01.   Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(b)  all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(c)  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted and applied by the Company on a consistent basis in the United States of America;

 

(d)  unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;

 

(e)  the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

 

(f)  unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.

 

1


 

“ Act ” when used with respect to any Holder, has the meaning specified in Section 1.04.

 

“ Add On Securities ” has the meaning specified in Section 3.01.

 

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

 

“ Aircraft Assets ” means (x) aircraft, airframes, engines (including spare engines), parts and pre-delivery payments relating to any of the items in this clause (x); and (y) intermediate or operating leases relating to any of the items in the foregoing clause (x).

 

“ ALC Maillot ” means ALC Maillot Jaune Borrower, LLC, a Delaware limited liability company.

 

“ ALC Warehouse ” means ALC Warehouse Borrower, LLC, a Delaware limited liability company.

 

“ Authenticating Agent ” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

“ Bankruptcy Default ” has the meaning specified in Section 5.01(g).

 

“ Board of Directors ” means, with respect to the Company, the board of directors of the Company or any duly authorized committee of such board; and with respect to any Guarantor, the board of directors or equivalent governing body of such Guarantor or any duly authorized committee of such board or governing body or, with respect to a Guarantor that is a limited partnership or limited liability company, the general partner, managers, members or equivalent governing body of such Guarantor.

 

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or a Guarantor, as the case may be, to (a) have been duly adopted by its Board of Directors and/or any committee thereof, as applicable, and (b) to be in full force and effect on the date of such certification.

 

“ Business Day ” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.

 

“ Commission ” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

2

 

“ Company ” has the meaning assigned to such term in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter such successor Person shall be included in the definition of “ Company ” and the Person replaced by such successor Person shall not be included in the definition of “ Company ”.

 

“ Company Request ” means a written request or order signed in the name of the Company or a Guarantor, as the case may be, by (x) its Chairman, Chief Executive Officer, President or a Vice President, and by its Chief Financial Officer, Treasurer, Secretary, Assistant Treasurer or Assistant Secretary, or, (y) in the case of a Guarantor that is a partnership or limited liability company, a person duly authorized under applicable law by the Board of Directors of such Guarantor to act on such Guarantor’s behalf.

 

“ Corporate Trust Office ” means the designated office of the Trustee or the Security Registrar, as the case may be, at which at any particular time its corporate trust business will be administered. The Corporate Trust Office for the Trustee as of the date of execution of this Indenture is located at Deutsche Bank Trust Company Americas, c/o Deutsche Bank National Trust Company, 100 Plaza One, 6 th  Floor, MS: JCY03-0699, Jersey City, New Jersey, 07311-3901, Attn: Alternative & Structured Finance Services.

 

“ Covenant Defeasance ” has the meaning specified in Section 13.03.

 

“ default ”, when used in Section 6.02 or Section 6.03(i), has the meaning specified in Section 6.02.

 

“ Defaulted Interest ” has the meaning specified in Section 3.07.

 

“ Depositary ” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.

 

“ Event of Default ” has the meaning specified in Section 5.01.

 

“ Exchange Act ” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“ Expiration Date ” has the meaning specified in Section 1.04.

 

“ Global Security ” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities to be registered in the name of a Depositary (or its nominee)).

 

“ Guaranteed Security ” means a Security endorsed with a Securities Guarantee or for which a Securities Guarantee is otherwise provided.

 

“ Guarantor ” means the Person named as a “Guarantor” with respect to the Securities of any series for which its Securities Guarantee is endorsed thereon or otherwise provided, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture or such Securities Guarantee, and thereafter “Guarantor” shall mean such successor Person.

 

3


 

“ Holder ” means a Person in whose name a Security is registered in the Security Register.

 

“ Indenture ” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “ Indenture ”, when used with respect to a particular series of Securities, shall also include the terms of such particular series of Securities established as contemplated by Section 3.01.

 

“ interest ” when used with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“ Interest Payment Date ” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“ Investment Company Act ” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“ Legal Defeasance ” has the meaning specified in Section 13.02.

 

“ Maturity ” when used with respect to any Security, means the date on which the principal of such Security or an installment of the principal of or premium on such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“ Non-Recourse Indebtedness ” means, when used to determine whether an Event of Default described in Section 5.01(e) has occurred and is continuing with respect to the Securities of any series, indebtedness for money borrowed that is incurred in connection with the financing or refinancing of the acquisition, overhaul, repair or refurbishment of Aircraft Assets and with respect to which the lenders or holders thereof have no recourse to the Company or any of its Subsidiaries for the collection of principal, interest and premium on such indebtedness other than recourse to (x) equity interests in any Special Purpose Aircraft Financing Entity; and (y) the assets (including Aircraft Assets) of Special Purpose Aircraft Financing Entities; provided that without limiting the foregoing, (i) the existence of a guarantee that does not constitute a guarantee of payment of principal, interest or premium on indebtedness shall not cause any indebtedness to fail to constitute Non-Recourse Indebtedness; and (ii) for the avoidance of doubt, indebtedness under (A) that certain Warehouse Loan Agreement, dated as of May 26, 2010, among ALC Warehouse, the lenders party thereto and Credit Suisse AG, New York Branch, as Agent, and (B) (1) that certain Credit Agreement, dated as of March 8, 2012, among ALC Maillot, the subsidiary guarantors party thereto, the lenders party thereto, Credit Agricole Corporate and Investment Bank, as administrative agent, and Deutsche Bank Trust Company Americas, as collateral agent; and (2) that certain Liquidity Facility Agreement, dated as of March 8, 2012, among ALC Maillot, Credit Agricole Corporate and Investment Bank, as liquidity facility provider, and Credit Agricole Corporate and Investment Bank, as administrative agent, in the case of each of the foregoing clauses (A) and (B) as may be amended, supplemented or extended, or refinanced or renewed or replaced on substantially similar terms, shall constitute Non-Recourse Indebtedness (provided that in the case of each of the foregoing clauses (A) and (B), (x) neither the Company nor any Guarantor of such series of Securities is a borrower of such indebtedness, (y) such indebtedness is not guaranteed as to payment of principal, interest and premium by the Company, a Guarantor of such series of Securities, or any Subsidiary of the Company other than a subsidiary of the applicable borrower of such indebtedness; and (z) such indebtedness is not secured by assets of the Company or its Subsidiaries other than assets of the applicable borrower and its subsidiaries and equity interests in such borrower and its subsidiaries).

 

4


 

“ Non-U.S. Person ” means a Person who is not a U.S. person, as defined in Regulation S.

 

“ Notice of Default ” means a written notice of the kind specified in Section 5.01(d) or (e), as applicable.

 

“ Officer ” means, with respect to any Person, the Chairman, Chief Executive Officer, President, the Chief Financial Officer, any Vice President, the Treasurer or the Secretary of such Person, or, in the event that such Person is a partnership or limited liability company, a person duly authorized under applicable law by the Board of Directors of such Person to act on such Person’s behalf.

 

“ Officers’ Certificate ” means a certificate signed in the name of the Company or a Guarantor, as the case may be, by (x) its Chairman, Chief Executive Officer, President or a Vice President, and by its Chief Financial Officer, Treasurer, Secretary, Assistant Treasurer or Assistant Secretary, or, (y) in the case of a Guarantor that is a partnership or limited liability company, a person duly authorized under applicable law by the Board of Directors of such Guarantor to act on such Guarantor’s behalf.

 

“ Opinion of Counsel ” means a written opinion of counsel, who may be an employee of or counsel for the Company or a Guarantor, as the case may be.

 

“ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.

 

“ Outstanding ” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture (including Securities held by the Company or an Affiliate of the Company), except :

 

(1)  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(2)  Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any Guarantor of such Securities) in trust or set aside and segregated in trust by the Company or any Guarantor of such Securities (if the Company or such Guarantor shall act as the Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

5


 

(3)  Securities as to which Legal Defeasance has been effected pursuant to Section 13.02;

 

(4)  Securities (x) that have been paid or (y) in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than, in the case of the foregoing clause (y), any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company or the Company and all applicable Guarantors, as the case may be; and

 

(5)  Securities converted into other securities pursuant to the terms of such convertible Securities;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units that shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company, any Guarantor of such Security or any other obligor upon such Security or any Affiliate of the Company, any Guarantor of such Security or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities owned as described in Clause D above that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, any Guarantor of such Security or any other obligor upon such Security or any Affiliate of the Company, any Guarantor of such Security or of such other obligor.

 

“ Paying Agent ” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.

 

“ Person ” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability company or government or any agency or political subdivision thereof.

 

6


 

“ Place of Payment ” when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01(f).

 

“ Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt (and guarantee, in the case of a Guaranteed Security) as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt (and guarantee, in the case of a Security with a Securities Guarantee) as the mutilated, destroyed, lost or stolen Security.

 

“ Private Placement Legend ” has the meaning specified in Section 2.04.

 

“ QIB ” means any “qualified institutional buyer,” as defined in Rule 144A.

 

“ Redemption Date ” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

“ Redemption Price ” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“ Registered Exchange Offer ” means an exchange offer by the Company registered under the Securities Act pursuant to which Restricted Securities are exchanged for Securities of like principal amount not bearing the Private Placement Legend.

 

“ Registration Rights Agreement ” means a registration rights agreement, if any, among the Company, any Guarantors (as applicable) and one or more initial purchasers in connection with an issuance of Restricted Securities of any series under this Indenture.

 

“ Regular Record Date ” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.

 

“ Regulation S ” means Regulation S under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.

 

“ Regulation S Global Security ” has the meaning specified in Section 2.01.

 

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

7


 

“ Restricted Security ” means any Security (or beneficial interest therein) not originally issued and sold in a transaction registered under the Securities Act, until such time as: (i) such Security (or beneficial interest therein) has been transferred in a transaction registered under the Securities Act; (ii) the Restriction Termination Date therefor has passed; or (iii) the Private Placement Legend therefor has otherwise been removed pursuant to Section 3.05(b)(4) hereof or, in the case of a beneficial interest in a Global Security, such beneficial interest has been exchanged for a beneficial interest in a Global Security not bearing a Private Placement Legend.

 

“ Restriction Termination Date ” means, (i) with respect to any Restricted Security (or beneficial interest therein) resold in reliance on Rule 144A, six months (or such other period specified in Rule 144(d)) from the later of the original issue date of such Restricted Security and the original issue date of any additional Restricted Securities within the same series, or, (ii) with respect to any Restricted Security (or beneficial interest therein) resold in reliance on Regulation S, 40 days (or such other period specified in Rule 903 of Regulation S, if applicable), after the later of the original issue date of such Restricted Security, the original issue date of any additional Restricted Securities within the same series and the date on which such Restricted Security (or any predecessor of such Restricted Security) was first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S.

 

“ Rule 144 ” means Rule 144 under the Securities Act (including any successor regulation thereto), as it may be amended from time to time, and any reference to a subsection thereof shall include any successor subsection thereto, as it may be amended from time to time.

 

“ Rule 144A ” means Rule 144A under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.

 

“ Rule 144A Global Security ” has the meaning specified in Section 2.01.

 

“ Securities ” has the meaning stated in the recitals of this Indenture and more particularly means any Securities, including Securities issued with a Securities Guarantee, authenticated and delivered under this Indenture.

 

“ Securities Act ” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“ Securities Guarantee ” means an agreement of a Guarantor, in the form set forth as Annex A hereto or in any other form specified in accordance with Section 3.01 hereof, to be endorsed on or otherwise provided for the Securities so guaranteed under this Indenture.

 

“ Security Register ” and “Security Registrar” have the respective meanings specified in Section 3.05.

 

“ Special Purpose Aircraft Financing Entity ” means, when used to determine whether an Event of Default described in Section 5.01(e) has occurred and is continuing with respect to the Securities of any series, a Subsidiary (w) that is not a Guarantor of such series; (x) that engages in no business other than the purchase, finance, refinance, lease, sale and management of Aircraft Assets, the ownership of Special Purpose Aircraft Financing Entities and business incidental thereto; (y) substantially all of the assets of which are comprised of Aircraft Assets and/or equity interests in Special Purpose Aircraft Financing Entities; and (z) that is not obligated under, or, the organizational documents or financing documents of which prevent it from incurring, in each case, indebtedness for money borrowed other than indebtedness incurred to finance or refinance the acquisition, overhaul, repair or refurbishment of Aircraft Assets.

 

8


 

“ Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.

 

“ Stated Maturity ” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“ Subsidiary ” means, as to any Person, any corporation, limited liability company or partnership (a) in the case of a corporation or limited liability company, of which securities having a majority of the ordinary voting power for the election of the board of directors or similar governing body (other than securities having such power only by reason of the happening of a contingency) are at the time owned by such Person or one or more Subsidiaries of such Person; or (b) in the case of a partnership, in which such Person or a Subsidiary of such Person is a general partner (unless such partnership can ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries).

 

“ Threshold Amount ” means, with respect to the Securities of any series, the “Threshold Amount” as specified as contemplated by Section 3.01(q).

 

“ Trust Indenture Act ” means the Trust Indenture Act of 1939 (15 U.S.C. § 77aaa-77bbbb) as in force at the date as of which this instrument was executed; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, “ Trust Indenture Act ” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

“ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Trustee ” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “ Trustee ” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“ U.S. Government Obligation ” has the meaning specified in Section 13.04.

 

“ Vice President ” when used with respect to the Company, a Guarantor or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “ vice president .”

 

Section 1.02.   Compliance Certificates and Opinions .

 

Upon any application or request by the Company or a Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company or a Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.

 

9


 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04) shall include:

 

(a)  a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(b)  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;

 

(c)  a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d)  a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 1.03.   Form of Documents Delivered to Trustee .

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that all such matters be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to any of such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company or a Guarantor, if any, may be based, insofar as it relates to legal matters, upon certificates or opinions of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon certificates or opinions of, or representations by, an officer or officers of the Company or a Guarantor unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required or permitted to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.04.   Acts of Holders; Record Dates .

 

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments, agreements or other documents signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instruments, agreements or other documents are delivered to the Trustee and, where it is hereby expressly required, to the Company and/or any Guarantor. Such instruments, agreements or other documents (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instruments, agreements or other documents. Proof of execution of any such instruments, agreements or other documents or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee, the Company and the applicable Guarantor if made in the manner provided in this Section. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including owners of beneficial interests in such Global Security, to take any action that a Holder is entitled to take under this Indenture.

 

10


 

The fact and date of the execution by any Person of any such instrument, agreement or other document or writing appointing any such agent may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument, agreement or other document or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of the signer’s authority. The fact and date of the execution of any such instrument, agreement or other document or writing appointing any such agent, or the authority of the Person acting in a capacity other than his or her individual capacity and executing the same, may each also be proved in any other manner that the Trustee deems sufficient.

 

The ownership of Securities shall be proved by the Security Register.

 

Any request, demand, authorization, direction, notice, consent, waiver or other action or Act of the Holder of any Security shall be conclusive and binding on such Holder and upon every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, including in respect of any mutilated, destroyed, lost or stolen Security (subject to Section 3.06 hereof), in respect of anything done, omitted or suffered to be done by the Trustee, the Company and/or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

 

The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to give, make or take the relevant action, whether or not any or all such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date, if any, to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

 

11


 

The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(b), or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

 

With respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the “ Expiration Date ” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to the Holders of Securities of the relevant series in the manner set forth in Section 1.06. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security of which it is the Holder may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount of such Security.

 

12


 

Section 1.05.   Notices, Etc., to Trustee, Company and Guarantor .

 

Any request, demand, authorization, direction, notice, consent, waiver or other action or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

 

(a)  the Trustee by any Holder or by the Company or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or

 

(b)  the Company or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or such Guarantor, as appropriate, addressed to the Company at the address of its principal office specified in the first paragraph of this instrument, or addressed to such Guarantor at the address of its principal office specified in the first paragraph of its Securities Guarantee, or, in each case, or at any other address previously furnished in writing to the Trustee by the Company or such Guarantor, attention: Chief Financial Officer and General Counsel.

 

The Trustee in its discretion, may elect to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Section 1.06.   Notice to Holders; Waiver .

 

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice, and shall be conclusive and binding upon such Person and, if such Person is a Holder, upon all future Holders of such Holder’s Security for which such waiver is given and of any Security issued upon the registration of transfer or exchange thereof, or issued in lieu thereof, including in respect of any mutilated, destroyed, lost or stolen Security. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

13


 

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

Notwithstanding anything to the contrary contained herein, as long as the Securities of any series are in the form of one or more Global Securities, notice to the Holders of Securities of such series may be made electronically in accordance with procedures of the Depositary.

 

Section 1.07.   Conflict with Trust Indenture Act .

 

If this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, such provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

Section 1.08.   Effect of Headings and Table of Contents .

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 1.09.   Successors and Assigns .

 

All covenants and agreements in this Indenture by the Company and each Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 1.10.   Separability Clause .

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 1.11.   Benefits of Indenture .

 

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Persons specified in Section 1.14, to the extent expressly set forth in such Section, and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

14


 

Section 1.12.   Governing Law .

 

This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 1.13.   Legal Holidays .

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Securities of any series that specifically states otherwise)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided that, except as otherwise expressly provided under the terms of any Securities of any series, no interest on such payment or on such principal, interest or premium paid on such next succeeding Business Day shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

 

Section 1.14.   Immunity of Incorporators, Shareholders, Members, Officers and Directors .

 

No recourse shall be had for the payment of principal of, or premium, if any, or interest, if any, on any Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, shareholder, member, officer or director, as such, past, present or future, of the Company or any Guarantor or of any successor corporation or entity of the Company or any Guarantor, either directly or indirectly through the Company or any Guarantor or any successor corporation or entity of the Company or any Guarantor, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities of each series are solely corporate or other entity obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, shareholder, member, officer or director, past, present or future, of the Company or any Guarantor or of any successor corporation or entity of the Company or any Guarantor, either directly or indirectly through the Company or any Guarantor or any successor corporation of the Company or any Guarantor, because of the incurring of the indebtedness hereby authorized or issued or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities of any series, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities of each series.

 

15

 

Section 1.15.   Waiver of Jury Trial .

 

EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE ISSUANCE OF THE SECURITIES OR OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Section 1.16.   Force Majeure .

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 1.17.  Counterparts .

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.

 

Section 1.18  PATRIOT Act.

 

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request from time to time in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

 

ARTICLE 2
SECURITY FORMS

 

Section 2.01.   Forms Generally .

 

The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.

 

Any Securities originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Securities (each, a “ Rule 144A Global Security ”). Any Securities originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Securities (each, a “ Regulation S Global Security ”).

 

The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

 

16


 

Section 2.02.  Form of Face of Security .

 

[ Insert any legend required by the Internal Revenue Code and the regulations thereunder. ]

 

Air Lease Corporation

 

 

 

 

 

No.              

 

$              

 

Air Lease Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                     , or registered assigns, the principal sum of                      Dollars on                      [ if the Security is to bear interest prior to Maturity, insert — and to pay interest thereon from                      or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on                      and                      in each year, commencing                      , at the rate of             % per annum, until the principal hereof is paid or made available for payment [ if applicable, insert — ; provided , that any principal and premium, and any such installment of interest, that is overdue shall bear interest at the rate of             % per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand].

 

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the                      or                      (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest so payable, but not so punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, forthwith cease to be payable to the Holder on such Regular Record Date and, at the Company’s election, may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof to be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

[ If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of             % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [ If applicable, insert — Any such interest on overdue principal or premium that is not paid on demand shall bear interest at the rate of             % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]

 

17


 

Payment of the principal of (and premium, if any) and [ if applicable, insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in                     , in such coin or currency of the                                  as at the time of payment is legal tender for payment of public and private debts [ if applicable, insert   — ; provided , however , that 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 Security Register] [ if a Global Security, insert — [ ; provided, however, that payment of interest may be made] [or] by wire transfer].

 

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.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof or by an Authenticating Agent on its behalf, by manual signature of one or more authorized signatories, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated:

 

Air Lease Corporation

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

Section 2.03.   Form of Reverse of Security .

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “ Securities ”), issued and to be issued in one or more series under an Indenture, dated as of October 11, 2012 (herein called the “ Indenture ”, which term shall have the meaning assigned to it in such instrument), among the Company, as issuer, [ if applicable, insert   —                     , as guarantor[s] (herein called the “ Guarantor [ s ]”, which term shall include any successor Guarantor[s] under the Indenture),] and                     , as trustee (herein called the “ Trustee ”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, [ if applicable, insert   — the Guarantor[s],] the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $             . The Company may at any time issue additional securities of this series under the Indenture in unlimited amounts having the same terms as the Securities, except as otherwise permitted by the Indenture.

 

18


 

[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to be given in the manner provided in the Indenture, [ if applicable, insert   — (1) on                      in any year commencing with the year                      and ending with the year                      through operation of the sinking fund for this series at a Redemption Price equal to           % of the principal amount, and (2)] at any time [ if applicable, insert — on or after                     ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [ if applicable, insert   — on or before                     ,           %, and if redeemed] during the 12-month period beginning                      of the years indicated,

 

Year

 

Redemption Price

 

Year

 

Redemption Price

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and thereafter at a Redemption Price equal to           % of the principal amount, together in the case of any such redemption [ if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

 

[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to be given in the manner provided in the Indenture, (1) on                      in any year commencing with the year                      and ending with the year                      through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [ if applicable, insert   — on or after], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning                      of the years indicated,

 

Year

 

Redemption Price For
Redemption Through
Operation of the Sinking Fund

 

Redemption Price For Redemption
Otherwise Than Through Operation
of the Sinking Fund

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and thereafter at a Redemption Price equal to           % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

 

[ If applicable, insert — The sinking fund for this series provides for the redemption in each year beginning with the year                      and ending with the year                     of [ if applicable, insert   — not less than $                     (“ mandatory sinking fund ”) and not more than] $                     aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [ if applicable, insert   — mandatory] sinking fund payments may be credited against subsequent [ if applicable, insert   — mandatory] sinking fund payments otherwise required to be made [ if applicable, insert   — , in the inverse order in which they become due].]

 

19


 

[ If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series in an authorized denomination for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

 

[ If the Security is not subject to redemption, insert — This Security is not redeemable prior to Stated Maturity.]

 

[ If applicable, insert — The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security,] [in each case] upon compliance with certain conditions set forth in the Indenture.]

 

[ If the Security is not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal amount of all of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]

 

[ If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, a portion of the principal amount of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such portion shall be equal to [ insert formula for determining the amount ]. Upon payment (i) of the portion of the principal amount so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof, including for the purpose of modifying the rights of the Holders of the Securities of any series [ if applicable, insert — and of Securities Guarantees] to be affected at any time by the Company [ if applicable, insert   — , the Guarantor[s]] and the Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at the time Outstanding of such series. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company [ if applicable, insert — and/or the Guarantor[s]] with certain provisions of the Indenture and certain past defaults with respect to such series and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or issued in lieu hereof, including in respect of any mutilated, destroyed, lost or stolen Security, whether or not notation of such consent or waiver is made upon this Security.

 

20


 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the right of the Holder of this Security, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07 of the Indenture) interest on this Security at the respective Stated Maturities expressed herein.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or the Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable in registered form without coupons in denominations of $                     and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series, of any authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made to a Holder for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, [ if applicable, insert — the Guarantor[s],] the Trustee and any agent thereof may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, [ if applicable, insert   — the Guarantor[s],] the Trustee or any such agent shall be affected by notice to the contrary.

 

21


 

[ If applicable, insert — Except in the limited circumstances described in the Indenture, the Securities of this series shall be issued in the form of one or more Global Securities and [                    ] shall be the Depositary for such Global Security or Securities.]

 

All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

Section 2.04.   Form of Legend for Securities .

 

Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Security authenticated and delivered hereunder shall bear one or more of the appropriate legends in substantially the following forms as relevant below:

 

[ If the Security is a Global Security, then insert — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]

 

[ If the Security is a Restricted Security, then insert the following legend (the “ Private Placement Legend ”) on the face thereof; provided, however, that the Private Placement Legend on any Security shall be removed at the request of the Holder on or after the date when such Security ceases to be a Restricted Security — THIS SECURITY [AND ANY RELATED SECURITIES GUARANTEE] HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS SECURITY [AND THE RELATED SECURITIES GUARANTEE] WERE ISSUED.]

 

Section 2.05.   Form of Trustee’s Certificate of Authentication .

 

The Trustee’s certificates of authentication shall be in substantially the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

,

 

as Trustee

 

 

 

22


 

By:

 

 

 

Authorized Signatory

 

 

ARTICLE 3
THE SECURITIES

 

Section 3.01.   Amount Unlimited; Issuable in Series .

 

The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. The terms of a series of Securities shall be established in or pursuant to one or more Board Resolutions of the Company and set forth in a Board Resolution, or, to the extent established pursuant to (rather than set forth in) a Board Resolution, in an Officers’ Certificate detailing such establishment and/or established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any such series. The terms of such series reflected in such Board Resolution, Officers’ Certificate, or supplemental indenture may include the following or any additional or different terms:

 

(a)  the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

 

(b)  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 Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities that, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);

 

(c)  the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

(d)  the date or dates on which the principal of any Securities of the series is payable;

 

(e)  the rate or rates at which any Securities of the series shall bear interest, or the method or methods by which such rate or rates shall be determined, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;

 

(f)  the place or places where the principal of and any premium and interest on any Securities of the series shall be payable;

 

(g)  as applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company;

 

23

 

(h)  the obligation, if any, of the Company to redeem or purchase or repay any Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, any Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

(i)  if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;

 

(j)  if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;

 

(k)  if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 1.01;

 

(l)  if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

 

(m)  if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;

 

(n)  if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount that shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof that shall be due and payable upon any Maturity other than the Stated Maturity or that shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

(o)  as applicable, whether the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.02 or Section 13.03 or both such Sections;

 

(p)  as applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

 

24


 

(q)  any addition to or change in the Events of Default that apply to any Securities of the series, any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02 and the Threshold Amount with respect to the series;

 

(r)  any addition to or change in the covenants set forth in Article 10 that applies to Securities of the series;

 

(s)  whether the Securities of the series will be convertible or exchangeable into other securities of the Company or another Person, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion price or exchange rate and the conversion or exchange period, and any additions or changes to the Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;

 

(t)  whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts;

 

(u)  any other terms of the series; and

 

(v)  whether the Securities of such series will be Guaranteed Securities and, if so, the terms upon which a Securities Guarantee would be required to be given if other than upon issuance of such Securities and, the terms and conditions of such Securities Guarantee to be endorsed upon or otherwise provided for the Securities in addition to or in lieu of the form of Securities Guarantee attached hereto as Annex A; and

 

(w)  any collateral security for the Securities of such series.

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided in the Officers’ Certificate referred to above or in any such indenture supplemental hereto.

 

With respect to any particular series of Securities issued and outstanding hereunder, the Company may, from time to time, without the consent of or notice to the Holders, by or pursuant to Board Resolution or by one or more indentures supplemental hereto, create and issue additional Securities within such series (“ Add On Securities ”) having terms and conditions identical to those of the other outstanding Securities in such series, except that Add On Securities (i) may have a different issue date from other outstanding Securities; (ii) may have a different principal amount than that of other outstanding Securities; (iii) may have a different first date of payment of interest following the issue date of such Add On securities and a different date from which the initial payment of interest accrues; (iv) may have terms specified in or pursuant to the relevant Board Resolution or supplemental indenture making appropriate adjustment to Articles Two and Three of this Indenture (and related definitions) applicable to such Add On Securities in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any registration rights or similar agreement applicable to such Add On Securities; and (v) may be entitled to additional or special interest as provided in Section 3.07 not applicable to other outstanding Securities and may not be entitled to such additional or special interest applicable to other outstanding Securities.

 

25


 

Section 3.02.   Denominations .

 

Unless otherwise specified pursuant to Section 3.01, the Securities of each series shall be issuable in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

 

Section 3.03.   Execution, Authentication, Delivery and Dating .

 

The Securities shall be executed on behalf of the Company, and, with respect to any Guaranteed Securities, the Securities Guarantees endorsed thereon or otherwise provided therefor shall be executed on behalf of each applicable Guarantor, by at least one of its Officers. The signature of any of these Officers on the Securities and/or the Securities Guarantees, if any, may be manual or facsimile.

 

Securities bearing the manual or facsimile signatures of individuals who were at any time Officers of the Company and, in the case of Guaranteed Securities, the applicable Guarantor, as the case may be, shall be deemed to be executed on behalf of the Company and such Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of issuance of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with, (x) in the case of Guaranteed Securities, the Securities Guarantees endorsed thereon or otherwise provided therefor executed by the Guarantor and (y) a Company Request for the authentication and delivery of such Securities, and the Trustee shall authenticate and deliver such Securities in accordance with the Company Request. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon an Opinion of Counsel to the effect that:

 

(a)  If the form of such Securities has been established by or pursuant to a Board Resolution, that such form has been established in conformity with the provisions of this Indenture

 

(b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and

 

(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company (with respect to the Securities) and by the Guarantor (with respect to the Securities Guarantee), as applicable, in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company (with respect to the Securities) and the Guarantor (with respect to the Securities Guarantee), as applicable, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

26


 

The Trustee shall have the right to decline to authenticate and deliver any such Securities if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee’s own rights, duties or immunities under the Securities or this Indenture in a manner that is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Request or Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

Each Security shall be dated the date of its authentication.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of one or more authorized signatories, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture or any related Securities Guarantee.

 

Section 3.04.   Temporary Securities .

 

Pending the preparation of definitive Securities of any series, the Company and each Guarantor, as applicable, may execute, and upon Company Request the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, with such appropriate insertions, omissions, substitutions and other variations as the Officer or Officers executing such Securities may determine, as evidenced by its, his or their execution of such Securities.

 

27


 

If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company and each Guarantor of such Securities shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

Section 3.05.   Registration, Registration of Transfer and Exchange; Certain Transfers and Exchanges .

 

(a)  Registration, Registration of Transfer and Exchange Generally. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby initially appointed “ Security Registrar ” for the purpose of registering Securities and transfers of Securities as herein provided. The Company, with prior notice to the Trustee, may replace the Security Registrar with an entity that satisfies the eligibility requirements of a Trustee under Section 6.09. The Trustee shall have the right to inspect the register of the Security Registrar at all reasonable times and may request and rely upon a certificate of a duly authorized officer of the Security Registrar as to the names and addresses of Holders and the principal amounts and numbers of the Securities held thereby and such other matters as the Trustee may reasonably request.

 

Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company and each Guarantor, as applicable, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like aggregate principal amount.

 

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company and each Guarantor, as applicable, shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company and each Guarantor of such Securities evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

 

28


 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.

 

The Company shall not and, in the case of Guaranteed Securities, the Guarantor shall not, be required (A) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

The provisions of Clauses (1), (2), (3), and (4) below shall apply only to Global Securities:

 

(1)  Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

 

(2)  Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) the Company in its sole discretion determines that such Global Security shall be exchangeable for definitive registered Securities and executes and delivers to the Security Registrar a Company Request providing that such Global Security shall be so exchangeable, (C) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.

 

(3)  Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct. In connection with the exchange of an entire Global Security for definitive Securities pursuant to Clause (2), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company and each Guarantor of such Security shall execute, and the Trustee shall authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of definitive Securities of authorized denominations.

 

29


 

(4)  Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

 

(b)  Additional Provisions Related to Transfer and Exchange of Certain Restricted Securities.

 

(1)  If the owner of a beneficial interest in a Rule 144A Global Security that is a Restricted Security wishes to transfer such interest (or a portion thereof) to a Non-U.S. Person pursuant to Regulation S, then upon receipt by the Trustee of (i) instructions from the Holder of the Rule 144A Global Security directing the Trustee to credit or cause to be credited a beneficial interest in the Regulation S Global Security equal to the principal amount of the beneficial interest in the Rule 144A Global Security to be transferred and (ii) a certificate from the transferor in the form of Exhibit A, the Trustee shall, subject to the rules and procedures of the Depositary, instruct the Depositary to increase the Regulation S Global Security and decrease the Rule 144A Global Security by the amount so transferred.

 

(2)  If the owner of a beneficial interest in a Regulation S Global Security that is a Restricted Security wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A, then upon receipt by the Trustee of (i) instructions from the Holder of the Regulation S Global Security directing the Trustee to credit or cause to be credited a beneficial interest in the Rule 144A Global Security equal to the principal amount of the beneficial interest in the Regulation S Global Security to be transferred and (ii) a certificate from the transferor in the form of Exhibit B, the Trustee shall, subject to the rules and procedures of the Depositary, instruct the Depositary to increase the Rule 144A Global Security and decrease the Regulation S Global Security by the amount so transferred.

 

(3)  Any transfer of Restricted Securities not described above (other than transfers of beneficial interests within the same Global Security, which must be effected in accordance with applicable law and the rules and procedures of the Depositary) shall be made only upon receipt by the Trustee of such opinions of counsel, certificates and/or other information reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with subsection (4) below.

 

(4)  Upon the transfer, exchange or replacement of any Security (or a beneficial interest in a Global Security) bearing a Private Placement Legend, the Trustee shall deliver only a Security (or a beneficial interest in a Global Security) that bears a Private Placement Legend unless:

 

(i)  such Security (or beneficial interest) is exchanged in a Registered Exchange Offer;

 

(ii)  such Security (or beneficial interest) is transferred pursuant to an effective registration statement;

 

30


 

(iii)  such Security (or beneficial interest) is transferred pursuant to Rule 144 upon delivery to the Trustee of a certificate from the transferor in the form of Exhibit C and an opinion of counsel reasonably satisfactory to the Trustee;

 

(iv)  such Security (or beneficial interest) is transferred, replaced or exchanged after the Restriction Termination Date therefor; or

 

(v)  in connection with such transfer, exchange or replacement, the Trustee shall have received an opinion of counsel and other evidence reasonably satisfactory to it to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the Securities Act.

 

(c)  Adverse Consequences Under Law . Furthermore, notwithstanding any other provision of this Section 3.05, the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences under any law or regulation.

 

(d)  Trustee’s Duties with Respect to Transfers. The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

(e)  No Responsibility for Records or Actions of Depositary. None of the Company, any Guarantor, the Trustee, any Paying Agent or any Security Registrar will have any responsibility or liability for any aspect of Depositary records relating to, or payments made on account of, beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any Depositary records relating to such beneficial ownership interests, or for transfers of beneficial interests in the Securities or any transactions between the Depositary and beneficial owners.

 

Section 3.06.   Mutilated, Destroyed, Lost and Stolen Securities .

 

If any mutilated Security is surrendered to the Trustee, the Company and each Guarantor of such Security, as applicable, shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by each of them to save each of them and any agent of either of them harmless, then, in the absence of actual notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company and each Guarantor of such Security, as applicable, shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like principal amount and bearing a number not contemporaneously outstanding.

 

31


 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel or of the Trustee) connected therewith.

 

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and each Guarantor thereof, as applicable, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 3.07.   Payment of Interest; Interest Rights Preserved; Additional or Special Interest .

 

Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, (x) interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and (y) whether payment of interest may be made, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.  Payments of interest on a Global Security may be made by wire transfer.

 

Any interest on any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:

 

(a)  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).

 

32


 

(b)  The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.

 

(c)  Under certain circumstances, the Company may be obligated to pay additional or special interest as liquidated damages to Holders of Outstanding Securities of any series, all as and to the extent set forth in one or more Registration Rights Agreements (if any) applicable to such series. In any such event, such additional or special interest the Company may be obligated to pay as liquidated damages will be deemed to be interest for purposes of this Indenture. The Trustee shall have no duty or responsibility for determining if any additional or special interest or liquidated damages are payable with respect to Securities of any series or, if any such additional or special interest or liquidated damages are payable thereon, when such additional or special interest or liquidated damages are payable and the amount thereof. The Company shall notify the Trustee and Paying Agent in writing at least five days prior to each Interest Payment Date with respect to Securities of such series if additional or special interest or liquidated damages are payable and, to the extent such additional or special interest or liquidated damages are payable, shall certify in such notice the date such additional or special interest or liquidated damages commenced to accrue, the applicable per annum interest rate or rates applicable thereto and the periods such additional or special interest or liquidated damages accrued at each such rate and the aggregate amount of such additional or special interest or liquidated damages payable on such Interest Payment Date.

 

Section 3.08.   Persons Deemed Owners .

 

Prior to due presentment of a Security for registration of transfer, the Company, each Guarantor (as applicable), the Trustee and any agent thereof may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, any Guarantor (as applicable), the Trustee or any agent thereof shall be affected by notice to the contrary.

 

33

 

Section 3.09.   Cancellation .

 

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company (and/or any Guarantor, as applicable) may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company (or such Guarantor, as applicable) may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder that have not been issued or sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Request.

 

Section 3.10.   Computation of Interest .

 

Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 3.11.  Execution of Securities Guarantee .

 

In the case of Guaranteed Securities, to evidence the Securities Guarantee to the Holders specified in this Indenture, an executed Securities Guarantee, in substantially the form attached hereto as Annex A or in any other form specified in accordance with Section 3.01 hereof, shall be endorsed on or otherwise provided for each applicable Security authenticated and delivered by the Trustee (or any Authenticating Agent).

 

Section 3.12.   CUSIP and ISIN Numbers .

 

The Company in issuing any series of the Securities may use “CUSIP” and “ISIN” numbers, in each case if then generally in use, and thereafter with respect to such series, the Trustee for the Securities of such series may use such numbers in any notice of redemption or exchange with respect to such series, provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of that series or as contained in any notice of a redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Securities of that series, and any such redemption or exchange shall not be affected by any defect in or omission of such numbers.

 

ARTICLE 4

SATISFACTION AND DISCHARGE

 

Section 4.01.   Satisfaction and Discharge of Indenture .

 

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:

 

34


 

(a)  either (i) all Securities theretofore authenticated and delivered (other than (A) Securities that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.06 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company (and/or any Guarantor of such Securities, as the case may be), in the case of Section 4.01(a)(ii)(B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness represented by such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(b)  the Company has paid or caused to be paid all other sums payable hereunder by the Company, as the case may be; and

 

(c)  the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of Clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.

 

Section 4.02.   Application of Trust Money .

 

Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 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 or any Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

 

35


 

ARTICLE 5

REMEDIES

 

Section 5.01.   Events of Default .

 

“ Event of Default ” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(a)  default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or

 

(b)  default in the payment of the principal of or any premium on any Security of that series at its Maturity; or

 

(c)  default in the deposit of any sinking fund payment, when and as due by the terms of any Security of that series, and continuance of such default for a period of 30 days; or

 

(d)  default in the performance, or breach, of any covenant or warranty of the Company in this Indenture with respect to such series (other than a covenant or warranty with respect to which a default in performance or breach is elsewhere in this Section specifically addressed or which covenant or warranty has been included in this Indenture solely for the benefit of one or more series of Securities other than that series), and continuance of such default or breach for a period of 90 consecutive days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(e)  default under any mortgage, indenture (including this Indenture) or instrument under which there is issued, or which secures or evidences, any indebtedness for borrowed money of the Company or any Subsidiary (other than indebtedness owed to the Company or any Subsidiary or Non-Recourse Indebtedness) now existing or hereinafter created, which default shall constitute a failure to pay principal in an amount exceeding the Threshold Amount for such series when due and payable at final stated maturity, after expiration of any applicable grace period with respect thereto (such default, a “ payment default ”), or shall have resulted in an aggregate principal amount of such indebtedness exceeding the Threshold Amount for such series becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable (such default, an “ acceleration default ”), without such indebtedness having been discharged or such acceleration having been rescinded or annulled within a period of 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series, a written notice specifying that an Event of Default under this Clause (e) is continuing and requiring the Company to cause the indebtedness subject to the payment default or acceleration default, as the case may be, to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or

 

36


 

(f)  the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or a Guarantor of such series, as the case may be, in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or a Guarantor of such series bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or a Guarantor of such series under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, trustee, sequestrator or other similar official of the Company or a Guarantor of such series or of all or substantially all of their respective property and assets, or ordering the winding up or liquidation of their respective affairs, and the continuance of any such decree or order for relief or any such other decree or order undismissed or unstayed and in effect for a period of 90 consecutive days; or

 

(g)  the Company or a Guarantor of such series, as the case may be, (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a custodian, receiver, liquidator, trustee, sequestrator or similar official of the Company or such Guarantor or of all or substantially all of the property and assets of the Company or such Guarantor or (iii) effects any general assignment for the benefit of creditors (an event of default specified in clause (f) or (g) a “ Bankruptcy Default ”); or

 

(h)  any other Event of Default provided with respect to Securities of that series.

 

Section 5.02.   Acceleration of Maturity; Rescission and Annulment .

 

If an Event of Default (other than a Bankruptcy Default) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company and each Guarantor of any such series, as applicable, (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or lesser specified amount) shall become immediately due and payable.

 

In the event of a declaration of acceleration with respect to Securities of any series because of an Event of Default under Section 5.01(e) has occurred and is continuing, the declaration of acceleration of such series shall be automatically annulled if the default triggering such Event of Default shall be remedied or cured by the Company or the applicable Subsidiary or waived by the holders of the relevant indebtedness within 30 days after declaration of acceleration with respect to such series and if (i) the annulment of the acceleration of such series would not conflict with any judgment or decree of a court of competent jurisdiction and (ii) all Events of Default with respect to Securities of that series, except non-payment of principal of, or premium or interest on, the Securities of such series that has become due solely by such declaration of acceleration of the Securities of such series, have been cured or waived as provided in Section 5.13.

 

37


 

If a Bankruptcy Default with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (a) the Company or a Guarantor of such series, as applicable, has paid or deposited with the Trustee a sum sufficient to pay:

 

(i)  all overdue interest on all Securities of that series,

 

(ii)  the principal of (and premium, if any, on) any Securities of that series that has become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

 

(iii)  to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, if any, and

 

(iv)  all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

 

(b)  all Events of Default with respect to Securities of that series, other than the non-payment of the principal of, or premium or interest on, Securities of that series that has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

Section 5.03.   Collection of Indebtedness and Suits for Enforcement by Trustee .

 

The Company covenants that if:

 

(a)  default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(b)  default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

 

38


 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy granted herein.

 

Section 5.04.   Trustee May File Proofs of Claim .

 

In case of any judicial proceeding relative to the Company or any Guarantor (with respect to its Securities Guarantee), as applicable, (or any other obligor upon the Securities), its or their respective property or creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided , however , that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

Section 5.05.   Trustee May Enforce Claims Without Possession of Securities .

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

39


 

Section 5.06.   Application of Money Collected .

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: to the payment of all amounts due the Trustee under Section 6.07;

 

SECOND: to the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities or series of Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind among such Securities or series of Securities, as the case may be, according to the amounts due and payable on such Securities or series of Securities for principal and any premium and interest, respectively; and

 

THIRD: to the Company.

 

Section 5.07.   Limitation on Suits .

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(a)  an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee of such Event of Default and the continuance thereof;

 

(b)  the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(c)  such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(d)  the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(e)  no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

 

40


 

it being understood and intended that no one or more of such Holders of Securities of that series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders of Securities of that series, or to obtain or to seek to obtain priority or preference over any other of such Holders of Securities of that series or to enforce any right under this Indenture, except, in each case, in the manner herein provided and for the equal and ratable benefit of all of such Holders of Securities of that series.

 

Section 5.08.   Unconditional Right of Holders To Receive Principal, Premium and Interest .

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

Section 5.09.   Restoration of Rights and Remedies .

 

If the Trustee or any Holder of Securities of any series has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, each Guarantor of such series, the Trustee and the Holders of Securities of such series shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and such Holders shall continue as though no such proceeding had been instituted.

 

Section 5.10.   Rights and Remedies Cumulative .

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.11.   Delay or Omission Not Waiver .

 

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

41

 

Section 5.12.   Control by Holders .

 

With respect to the Securities of any series, the Holders of a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, in each case, under this Indenture and relating to or arising under an Event of Default with respect to such series other than a Bankruptcy Default, and with respect to all Securities, the Holder of a majority in principal amount of the Outstanding Securities affected shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, in each case under this Indenture and not relating to or arising under an Event of Default other than a Bankruptcy Default, provided that:

 

(a)  such direction shall not be in conflict with any rule of law or with this Indenture or the Securities of such series or such affected Securities, as the case may be,

 

(b)  such direction is not unduly prejudicial to the rights of the Holders of the Outstanding Securities of such series or such Outstanding Securities affected, as the case may be, not joining in such direction,

 

(c)  such direction will not involve the Trustee in personal liability or expense for which the Trustee has not received a reasonably satisfactory indemnity, and

 

(d)  the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.

 

Section 5.13.   Waiver of Past Defaults .

 

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series by notice to the Trustee may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a continuing default:

 

(a)  in the payment of the principal of or any premium or interest on any Security of such series, or

 

(b)  in respect of a covenant or provision hereof that under Article 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

For the avoidance of doubt, any past default described in clauses (a) and (b) of this Section may be waived with respect to a series of Securities and its consequences by the Holders of all Outstanding Securities of such series on behalf of the Holders of all of the Securities of such series by notice to the Trustee.

 

Upon any waiver described in this Section 5.13, 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.

 

42


 

Section 5.14.   Undertaking for Costs .

 

All parties to this Indenture agree, and each Holder of any Security by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee, the Company or any Guarantor.

 

Section 5.15.   Waiver of Usury, Stay or Extension Laws .

 

Each of the Company and each Guarantor (with respect to its Securities Guarantee of any series of Guaranteed Securities), as applicable, covenants (to the extent that each of them may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect its covenants or its performance of this Indenture; and each of the Company and each Guarantor (with respect to its Securities Guarantee of any series of Guaranteed Securities), as applicable, (to the extent that each of them may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE 6
THE TRUSTEE

 

Section 6.01.   Certain Duties and Responsibilities .

 

(a)  Except during the continuance of an Event of Default with respect to the Securities of any series:

 

(i) the Trustee undertakes to perform, with respect to the Securities of such series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii) in the absence of bad faith on its part, the Trustee may, with respect to the Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

43


 

(b)  If an Event of Default with respect to the Securities of such series has occurred and is continuing, the Trustee shall exercise, with respect to the Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

(c)  The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and this Indenture. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

(i)  this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;

 

(ii)  the Trustee shall not be liable for any error or judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

(iii)  the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series 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

 

(iv)  no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(d)  Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

Section 6.02.   Notice of Defaults .

 

Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall give the Holders of Securities of such series in the manner set forth in Section 1.06 notice of such default actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee may withhold such notice if it in good faith determines that the withholding of such notice is in the interests of the Holders of Securities of such series; and provided further that in the case of any default of the character specified in Section 5.01(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 90 days after the occurrence thereof. For the purpose of this Section and Section 6.03(i), the term “ default ” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

 

44


 

Section 6.03.   Certain Rights of Trustee .

 

Subject to the provisions of Section 6.01:

 

(a)  the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(b)  any request or direction of the Company or a Guarantor mentioned herein shall be sufficiently evidenced by a Company Request, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;

 

(c)  whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon one or more Officers’ Certificates;

 

(d)  the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e)  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of any series of Securities pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;

 

(f)  the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, 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;

 

(g)  the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(h)  in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

45


 

(i)  the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact a default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities of the applicable series and this Indenture;

 

(j)  the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

 

(k)  the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; and

 

(l)  the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and authorized or within the discretion or rights or powers conferred upon it by this Indenture.

 

Section 6.04.   Not Responsible for Recitals or Issuance of Securities .

 

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and each Guarantor of such Securities, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company or any Guarantor of Securities or the proceeds thereof.

 

Section 6.05.  May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or any Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company and such Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

Section 6.06.   Money Held in Trust .

 

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

46


 

Section 6.07.   Compensation and Reimbursement

 

The Company agrees:

 

(a)  to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(b)  except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct; and

 

(c)  to indemnify each of the Trustee or any predecessor Trustee for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Guarantor, any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder (including the reasonable fees and disbursements of counsel). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder, except to the extent the Company is prejudiced by such failure. The provisions of this Section 6.07 shall survive the resignation or removal of the Trustee or the termination of the Indenture.

 

Without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services after a Bankruptcy Default occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under applicable federal or state bankruptcy, insolvency, reorganization or other similar law.

 

Section 6.08.   Conflicting Interests .

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

 

Section 6.09.   Corporate Trustee Required; Eligibility .

 

There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $100,000,000 and has an office in New York, New York. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

47


 

Section 6.10.   Resignation and Removal; Appointment of Successor .

 

No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.

 

The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and each Guarantor, as applicable. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.

 

If at any time:

 

(a)  the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company, or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(b)  the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company, or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(c)  the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (i) the Company may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

48


 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company, and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company, or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

Section 6.11.   Acceptance of Appointment by Successor .

 

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, each Guarantor (as applicable) and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company, any Guarantor (as applicable) or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, each Guarantor of any such series (as applicable), the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and that (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

49


 

Upon request of any such successor Trustee, the Company and each Guarantor (as applicable) shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

Section 6.12.   Merger, Conversion, Consolidation or Succession to Business .

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee (including the trust created by this Indenture), shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 6.13.   Preferential Collection of Claims Against Obligors .

 

If and when the Trustee shall be or become a creditor, directly or indirectly, secured or unsecured, of the Company, any Guarantor or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or any such other obligor. A Trustee that has resigned or has been removed shall be subject to Section 3.11(a) of the Trust Indenture Act to the extent indicated therein.

 

50


 

Section 6.14.   Appointment of Authenticating Agent .

 

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities, which Authenticating Agent or Agents shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.04, 3.06, or 9.06 and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $100,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent (including the authenticating agency contemplated by this Indenture), shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent that shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

51


 

The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section as agreed in writing between the Trustee and such Authenticating Agent, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.

 

If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

[                              ], as Trustee

 

By:

 

 

 

As Authenticating Agent

 

 

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 

 

 

ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 7.01.   Company To Furnish Trustee Names and Addresses of Holders .

 

The Company will furnish or cause to be furnished to the Trustee, to the extent required by the Trust Indenture Act:

 

(a)  semi-annually, not later than June 1 and December 1 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding Interest Payment Date for such series, and

 

(b)  at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.  The Company and each Guarantor shall comply with Section 312(a) of the Trust Indenture Act.

 

52

 

Section 7.02.   Preservation of Information; Communications to Holders .

 

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

 

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights, privileges and obligations of the Trustee, shall be as provided by the Trust Indenture Act.

 

Every Holder of Securities, by receiving and holding the same, agrees with the Company, each Guarantor of such Securities and the Trustee that none of the Company, such Guarantor or the Trustee or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act, and that each of the Company, such Guarantor and the Trustee and any agent of any of them shall have the protection of Section 312(c) of the Trust Indenture Act.

 

Section 7.03.   Reports by Trustee .

 

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein and shall otherwise comply with Sections 313(a) and 313(b) of the Trust Indenture Act.

 

Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than July 15 in each calendar year, commencing in 2013.

 

A copy of each such report shall, at the time of such transmission to Holders of a series of Outstanding Securities, be filed by the Trustee with each stock exchange upon which any Securities of such series are listed, with the Commission, the Company and each Guarantor with respect to such series.

 

Section 7.04.   Reports by Company and Guarantors .

 

The Company and each Guarantor, as applicable, shall file with the Trustee and the Commission, and transmit to Holders, such information, documents, opinions and reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission. All required information, documents and other reports referred to in this Section 7.04 shall be deemed filed with the Trustee and transmitted to the Holders at the time such information, documents or other reports are publicly filed with the Commission via the Commission’s EDGAR filing system (or any successor system). For purposes of clarification, the foregoing sentence does not impose on the Trustee any duty to search for or obtain any electronic or other filings that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.

 

53


 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or any Guarantor’s compliance with any of their respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 8.01.   The Company May Consolidate, Etc., Only on Certain Terms.

 

(a)  The Company may not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:

 

(i)  if other than the Company, the Person formed by such consolidation, into which the Company is merged or that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership, limited liability company, trust or similar entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant and obligation under this Indenture on the part of the Company; and

 

(ii)  immediately after giving effect to such transaction, no Event of Default with respect to the Securities of any series, and no event that, after notice or lapse of time or both, would become an Event of Default with respect to the Securities of any series, shall have occurred and be continuing.

 

(b)  The restriction in the foregoing Clause (ii) shall not apply to the merger of the Company with or into an Affiliate of the Company solely for the purpose of reincorporating or reorganizing the Company in another jurisdiction or to the merger or consolidation of any Subsidiary with or into the Company.

 

(c)  For the avoidance of doubt, aircraft or engine leasing in the ordinary course of business of the Company and its subsidiaries shall not be considered the leasing of the Company’s properties and assets substantially as an entirety for purposes of this Article.

 

Section 8.02.   Successor Substituted .

 

Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

54


 

ARTICLE 9
SUPPLEMENTAL INDENTURES

 

Section 9.01.   Supplemental Indentures Without Consent of Holders .

 

Without the consent of any Holders, the Company and any Guarantor (as applicable), and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(a)  to evidence the succession of another Person to the Company and/or any Guarantor and the assumption by any such successor of the covenants of the Company and/or any Guarantor herein, in the Securities or in the applicable Securities Guarantee; or

 

(b)  to add to the covenants of the Company and/or any Guarantor (as applicable) for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company and/or such Guarantor (as applicable); or

 

(c)  to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

(d)  to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

(e)  to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or

 

(f)  to secure any series of the Securities or any Securities Guarantee; or

 

(g)  to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 and/or to establish the form or terms of any Securities Guarantee; or

 

(h)  to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or

 

55


 

(i)  to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be defective or inconsistent with any other provision herein or in any supplemental indenture; or

 

(j)  to conform this Indenture or any supplemental indenture to the description of the Securities and/or Securities Guarantees set forth in any prospectus, offering memorandum or supplement to such prospectus or offering memorandum related to such series of Securities; or

 

(k)  to comply with the rules of any applicable securities depositary; or

 

(l)  to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act; or

 

(m)  to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed; provided, that such action pursuant to this Clause (l) shall not have a material adverse effect on the interests of the Holders of the Outstanding Securities of any series; or

 

(n)  to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article 13; provided that such action pursuant to this Clause (m) shall not have a material adverse effect on the interests of the Holders of the Outstanding Securities of any series; or

 

(o)  to add Securities Guarantees with respect to the Securities of any series or to confirm and evidence the release, termination or discharge of any such Securities Guarantee with respect to the Securities of any series when such release, termination or discharge is permitted under this Indenture; or

 

(p)  to create and issue Add On Securities pursuant to Section 3.01; or

 

(q)  to make any other provisions with respect to matters or questions arising under this indenture or to make any other change that is necessary or desirable; provided that no such provision or change made pursuant to this Clause (q) shall have a material adverse effect on the interests of the Holders of the Outstanding Securities of any series.

 

Section 9.02.   Supplemental Indentures with Consent of Holders .

 

With the consent of the Holders of more than 50% in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company, each Guarantor (as applicable) and the Trustee, the Company, any Guarantor (as applicable), and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture and/or any Securities Guarantee (as applicable); provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:

 

56


 

(a)  change the Stated Maturity of the principal of, or of any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the coin or currency in which any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

(b)  reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

(c)  modify any of the provisions of this Section, Section 5.13 or Section 10.05, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this Clause (c) shall not be deemed to require the consent of any Holder with respect to changes in the references to the “Trustee” and concomitant changes in this Section and Section 10.05, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(h).

 

A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

Section 9.03.   Execution of Supplemental Indentures .

 

Upon request of the Company, and upon receipt of evidence of the consent of such Holders as required by Section 9.02, as applicable, the Trustee shall join with the Company and each applicable Guarantor in the execution of any supplemental indenture permitted by this Article.

 

In executing, or accepting the additional trusts or duties created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts or duties created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel each stating that the execution of such supplemental indenture is authorized by this Indenture or that the execution of such supplemental indenture is permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

57


 

Section 9.04.   Effect of Supplemental Indentures .

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby except to the extent stated to be applicable only to the Securities of one or more other series.

 

Section 9.05.   Conformity with Trust Indenture Act .

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

Section 9.06.   Reference in Securities to Supplemental Indentures .

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and any Guarantor of the Securities of such series, as applicable, shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and such Guarantor, as applicable, to any such supplemental indenture may be prepared and executed by the Company and such Guarantor, as applicable, and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

ARTICLE 10
COVENANTS

 

Section 10.01.   Payment of Principal, Premium and Interest .

 

The Company covenants and agrees that it will duly and punctually pay the principal of and any premium and interest on the Securities in accordance with this Indenture.

 

Section 10.02.   Maintenance of Office or Agency .

 

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that 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 that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

58


 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Section 10.03.   Money for Securities Payments to Be Held in Trust .

 

If the Company or any Guarantor of such series shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent for any series of Securities (unless such Paying Agent is the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (b) during the continuance of any default by the Company or any Guarantor, as applicable, (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

 

The Company or any Guarantor, as applicable, may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Request direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company, such Guarantor or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company, such Guarantor or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company or any Guarantor, as applicable, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company or such Guarantor, as the case may be, upon Company Request, or (if then held by the Company or such Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or such Guarantor (as the case may be) as trustee thereof, shall 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 a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or such Guarantor (as the case may be).

 

59


 

Section 10.04.   Statement by Officers as to Default .

 

The Company and each Guarantor, as applicable, will each deliver to the Trustee within 120 days after the end of each fiscal year of the Company or such Guarantor (as the case may be) ending after the date hereof, a certificate from the principal executive, financial or accounting officer of the Company or such Guarantor (as the case may be) stating whether or not to the knowledge of the signor thereof the Company or such Guarantor (as the case may be) is in default in the performance and observation of any of the conditions and covenants of this Indenture or the Securities Guarantees (with respect to such Guarantor) (without regard to any period of grace or requirement of notice provided hereunder or thereunder), and, if the Company or such Guarantor (as the case may be) shall be in default, specifying all such defaults and the nature and status thereof of which the signor may have knowledge.

 

Section 10.05.   Waiver of Certain Covenants .

 

Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(r), 9.01(b) or 9.01(g) for the benefit of the Holders of such series if before the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

ARTICLE 11
REDEMPTION OF SECURITIES

 

Section 11.01.   Applicability of Article .

 

Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.

 

60


 

Section 11.02.   Election To Redeem; Notice to Trustee .

 

In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records in the Company’s possession as shall enable the Trustee to select the Securities to be redeemed pursuant to this Section 11.03. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.

 

Section 11.03.   Selection by Trustee of Securities To Be Redeemed .

 

If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and in accordance with the procedures of the applicable Depositary and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

 

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed.

 

Section 11.04.   Notice of Redemption .

 

Notice of redemption shall be given in the manner provided in Section 1.06 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed and, if the Trustee is not giving such notice in accordance with a Company Request delivered pursuant to this Section 11.04, the Trustee for such Securities.

 

All notices of redemption shall state:

 

(a)  the Redemption Date,

 

(b)  the Redemption Price,

 

(c)  if less than all the Outstanding Securities of any series that are not Global Securities and consist of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security or one or more Global Securities are to be redeemed, the aggregate principal amount of Securities to be redeemed,

 

61


 

(d)  that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, as applicable, that interest thereon will cease to accrue on and after said date,

 

(e)  the place or places where each such Security is to be surrendered for payment of the Redemption Price, and

 

(f)  that the redemption is for a sinking fund, if such is the case.

 

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, by the Trustee, in the name and at the expense of the Company, upon Company Request delivered to the Trustee, at least five Business Days before such notice of redemption is to be given by the Trustee (unless a shorter period shall be agreed to by the Trustee), which Company Request shall include the information required under this Indenture to be stated in such notice of redemption.

 

Section 11.05.   Deposit of Redemption Price .

 

No later than 10:00 a.m. New York City time on any Redemption Date, the Company or any applicable Guarantor, as applicable, shall deposit with the Trustee or with a Paying Agent (or, if the Company or such Guarantor is acting as Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities that are to be redeemed on that date.

 

Section 11.06.   Securities Payable on Redemption Date .

 

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided , however , that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium thereon shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

62

 

 

If any Security called for redemption is converted pursuant to the terms thereof, any money deposited with the Trustee or any Paying Agent or segregated and held in trust for the redemption of such Security shall be paid to the Company upon receipt of the Trustee or the Paying Agent, as the case may be, of a Company Request, or, if then held by the Company or any Guarantor of such Security, shall be discharged from such trust.

 

Section 11.07.   Securities Redeemed in Part .

 

Any Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company and each Guarantor of such Security (as applicable) shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

ARTICLE 12
SINKING FUNDS

 

Section 12.01.   Applicability of Article .

 

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series for which a sinking fund is provided except as otherwise specified as contemplated by Section 3.01 for such Securities.

 

The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

 

Section 12.02.   Satisfaction of Sinking Fund Payments with Securities .

 

The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

63


 

Section 12.03.   Redemption of Securities for Sinking Fund .

 

Not less than 45 days prior to each sinking fund payment date as specified in the terms of a series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, that is to be satisfied by payment of cash and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Prior to each such sinking fund payment date as specified in the terms of a series of Securities, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.

 

ARTICLE 13
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 13.01.   Company’s Option To Effect Legal Defeasance or Covenant Defeasance .

 

The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities, as the case may be, not designated pursuant to Section 3.01 as being indefeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article.

 

Section 13.02.   Legal Defeasance and Discharge .

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, each of the Company and each Guarantor shall be deemed to have been discharged from its obligations with respect to such Securities or series as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “ Legal Defeasance ”). For this purpose, such Legal Defeasance means that each of the Company and each Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Securities or series, to have satisfied all of its other obligations under such Securities or series, this Indenture and its Securities Guarantee, as applicable, insofar as such Securities or series are concerned, and to have cured all then existing Events of Default with respect to such Securities or series (and the Trustee, on demand and at the expense of the Company shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities or of Securities of such series to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due or on the Redemption Date, (b) the Company’s obligations with respect to such Securities or series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03; (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities or series of Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities or series.

 

64


 

Section 13.03.   Covenant Defeasance .

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Sections 7.04 and 8.01 and any covenants provided pursuant to Section 3.01(r), 9.01(b) or 9.01(g) for the benefit of the Holders of such Securities or Securities of such series, (b) the occurrence of any event specified in Sections 5.01(d) (with respect to any of Sections 7.04 and 8.01 and any such covenants provided pursuant to Sections 3.01(r), 9.01(b) or 9.01(g)), and Sections 5.01(e) through 5.01(h) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities or series of Securities as provided in this Section and (c) each Guarantor shall be deemed to have been discharged from its obligations with respect to such Securities or series as provided in this Section, in each case on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “ Covenant Defeasance ”). For this purpose, such Covenant Defeasance means that, with respect to such Securities or series, (a) the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities or series shall be unaffected thereby and (b) each Guarantor shall be deemed to have been discharged from its obligations under this Indenture and its Securities Guarantee, in each case with respect to such Securities or series of Securities.

 

Section 13.04.   Conditions to Legal Defeasance or Covenant Defeasance .

 

The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of Securities, as the case may be:

 

(a)  The Company or any applicable Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) in trust for the benefit of the Holders of such Securities or of Securities of such series, (i) money in an amount, or (ii) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay, the principal of and any premium and interest on such Securities or the Securities of such series on the respective Stated Maturities, or on the applicable Redemption Date, as the case may be, in accordance with the terms of this Indenture. As used herein, “ U.S. Government Obligation ” means (x) any security that is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation that is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

 

65


 

(b)  In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel (which may be subject to customary assumptions and exclusions) stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm (subject to customary assumptions and exclusions) that, the Holders of such Securities or the Securities of such series, as the case may be, will not recognize gain or loss for Federal income tax purposes as a result of the Legal Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such Legal Defeasance were not to occur.

 

(c)  In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel (which may be subject to customary assumptions and exclusions) to the effect that the Holders of such Securities or the Securities of such series, as the case may be, will not recognize gain or loss for Federal income tax purposes as a result of the Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such Covenant Defeasance were not to occur.

 

(d)  No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(f) and (g), on the 91st day after the date of such deposit.

 

(e)  Such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of the Trust Indenture Act).

 

(f)  Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which it is bound.

 

66


 

(g)  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which may be subject to customary assumptions and exclusions), each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with.

 

Section 13.05.   Deposited Money and U.S. Government Obligations To Be Held in Trust; Miscellaneous Provisions .

 

Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “ Trustee ”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company or any 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 and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities.

 

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or any applicable Guarantor, as the case may be, from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities that, in the opinion of a nationally recognized firm of independent public accountants , are in excess of the amount thereof that would then be required to be deposited to effect the Legal Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

 

Section 13.06.   Reinstatement .

 

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company and any Guarantor, as the case may be, have been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided , however , that if the Company or any Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of obligations, the Company and/or such Guarantor shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

 

67


 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.

 

 

AIR LEASE CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ Steven F. Udvar-Házy

 

 

 

Name: Steven F. Udvar-Házy

 

 

 

Title: Chairman and Chief Executive Officer

 

 

 

 

 

 

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee

 

 

 

 

 

 

 

By:

/s/ Mark Esposito

 

 

 

Name: Mark Esposito

 

 

 

Title: Assistant Vice President

 

 

 

 

 

 

 

 

 

 

By:

/s/ Maria Inoa

 

 

 

Name: Maria Inoa

 

 

 

Title: Associate

 

 

 

[ Indenture Signature Page ]

 


 

ANNEX A
FORM OF SECURITIES GUARANTEE

 

FOR VALUE RECEIVED,                                 , a                                      (the “Guarantor”), having its principal office at                                                       , hereby absolutely, unconditionally and irrevocably guarantees to the holders (the “Holders”) of the [Note][Debenture][Other Title of Security] Due                (the “Securities”) of Air Lease Corporation, a Delaware corporation (the “Issuer”) issued under that certain Indenture, dated as of October 11, 2012 (the “Indenture”), among the Company and                     , as trustee (the “Trustee”), the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of all present and future obligations of the Issuer for the payment of the principal and premium, if any, of, and the payment of interest on, the Securities pursuant to the terms thereof, whether absolute or contingent (collectively, the “Obligations”). Nothing herein shall be deemed to provide for a guarantee of any obligation of the Issuer other than the Obligations. Nothing herein shall be deemed to provide for a guarantee of any obligation of any person or entity other than the Issuer.

 

The Guarantor’s obligations hereunder shall be unconditional and absolute, and shall not be released, discharged or otherwise affected by (i) the existence, validity, enforceability, perfection or extent of any collateral therefor, (ii) any lack of validity or enforceability of any provision of the Securities, (iii) any liquidation, bankruptcy, insolvency, reorganization or other similar proceeding affecting the Issuer or its assets, or (iv) any other circumstance relating to the Obligations that might otherwise constitute a legal or equitable discharge of, or defense to, the Guarantor, other than the payment in full of the Obligations or the release of the Guarantor in accordance with the terms of the Indenture or the Securities. The Guarantor agrees that the Holders and/or the Trustee may resort to the Guarantor, as primary obligor and not merely as surety, for payment of any of the Obligations not paid when due, whether or not the Holders or the Trustee shall have proceeded against the Issuer or any other obligor principally or secondarily obligated with respect to any of the Obligations. Neither the Holders nor the Trustee shall be obligated to file any claim relating to any of the Obligations in the event that the Issuer becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Holders or the Trustee to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment made to the Holders by the Issuer in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor’s liability with respect to such Obligations shall be reinstated.

 

The Guarantor agrees that, subject to the Indenture, the Holders and/or the Trustee may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of or exchange or surrender any collateral for any of the Obligations, and may also make any agreement with the Issuer or with any other party to or person liable on any of the Obligations or interested therein, for the extension, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Holders, the Trustee and the Issuer or any such other party or person, and that none of the foregoing shall in any way impair or affect this Securities Guarantee.

 

Annex A - 1


 

The Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by law, (a) notice of the acceptance of this Securities Guarantee and of the Obligations, presentment, demand for payment, notice of dishonor and protest, (b) any requirement that any Holder exhaust any right or take any action against the Issuer, and (c) any right to revoke this Securities Guarantee.

 

Upon payment of any of the Obligations, the Guarantor shall be subrogated to the rights of the Holders and/or the Trustee against the Issuer with respect to such Obligations, and the Holders and the Trustee agree to take such steps, at the Guarantor’s expense, as the Guarantor may reasonably request to implement such subrogation; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation during any period in which any amount payable by the Issuer under the Security is overdue.

 

No failure on the part of the Holders or the Trustee to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Holders or the Trustee of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power. Each and every right, remedy and power hereby granted to the Holders or the Trustee or allowed any of them by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Holders or the Trustee at any time or from time to time.

 

The Guarantor hereby represents and warrants that:

 

(a)  the Guarantor is duly organized, validly existing and in good standing as a                              under the laws of                              and has full [corporate] [entity] power to execute, deliver and perform this Securities Guarantee;

 

(b)  the execution, delivery and performance of this Securities Guarantee have been and remain duly authorized by all necessary [corporate] [entity] action and do not contravene any provision of the Guarantor’s [certificate of incorporation or by-laws] [organizational documents], as amended to date, or any law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets; and

 

(c)  this Securities Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

The Guarantor may not assign its obligations hereunder to any person (except as permitted by the Indenture or the terms of the Securities) without the prior written consent of the Holders or the Trustee.

 

All payments by the Guarantor to the Holders or the Trustee shall be made in accordance with the provisions of the Indenture and the Securities.

 

Annex A - 2


 

All notices or demands on the Guarantor shall be deemed effective when received, shall be in writing and shall be delivered by hand or by registered mail, or by facsimile transmission promptly confirmed by registered mail, addressed to the Guarantor at:

 

[Name of Guarantor]
[Address]
Attention:
Facsimile:

 

or to such other addresses or facsimile numbers as the Guarantor shall have notified the Holders or the Trustee in a written notice delivered in accordance with the Indenture.

 

This Securities Guarantee shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the Obligations have been paid in full or this Securities Guarantee is released in accordance with the terms of the Indenture or the Securities.

 

This Securities Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed solely within such State.

 

No amendment or waiver of any provision of this Securities Guarantee shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor.

 

If for any reason any provision or provisions hereof are determined to be invalid and contrary to any existing or future law, such invalidity shall not, to the fullest extent permitted by law, impair the operation of or effect of those portions of this Securities Guarantee that are valid.

 

THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS SECURITIES GUARANTEE.

 

Dated:

 

 

[NAME OF GUARANTOR]

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

 

 

Annex A - 3

 

EXHIBIT A

 

FORM OF CERTIFICATE FOR TRANSFER FROM
RULE 144A GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY
(transfers pursuant to Section 3.05(b)(1) of the Indenture)

 

[Date]

 

[Name of Trustee]
[Address of Trustee]

 

Re: [Note][Debenture][Other Title of Security] Due                (the “Securities”) of Air Lease Corporation (the “Company”) [guaranteed by                            (the “Guarantor”)]

 

Ladies and Gentlemen:

 

Reference is hereby made to the Indenture, dated as of                      between Air Lease Corporation, as issuer, and                                    as trustee (the “Trustee”)[, as supplemented by that Supplemental Indenture dated                                    by and among the Company, the Trustee [and the Guarantor]] (as amended and [further] supplemented from time to time, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.

 

This letter relates to $                   principal amount of Securities that are held by the undersigned (the “Transferor”) as a beneficial interest in the Rule 144A Global Security (CUSIP No.                             ) deposited with [Name of Depositary] (the “Depositary”). The Transferor has requested a transfer of such beneficial interest for an interest in the Regulation S Global Security (CUSIP No.                             ) deposited with the Depositary.

 

In connection with such request and in respect of such Securities, the Transferor hereby certifies that such transfer has been effected pursuant to and in accordance with Regulation S and accordingly further certifies that:

 

(a)  the offer of the Securities was not made to a person in the United States;

 

(b)  either (i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction has been pre-arranged with a buyer in the United States;

 

(c)  no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;

 

(d)  the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

 

Exhibit A - 1


 

(e)  the Transferor is the beneficial owner of the Securities being transferred.

 

In addition, if the transfer is made during the distribution compliance period specified in Rule 903 of Regulation S and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, the Transferor confirms that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.

 

You and the Company [and the Guarantor] are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

Dated:

Very truly yours,

 

 

 

[Name of Transferor]

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 

Exhibit A - 2


 

EXHIBIT B

 

FORM OF CERTIFICATE FOR TRANSFER FROM
REGULATION S GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
(transfers pursuant to Section 3.05(b)(2) of the Indenture)

 

[Date]

 

[Name of Trustee]
[Address of Trustee]

 

Re: [Note][Debenture][Other Title of Security] Due                (the “Securities”) of Air Lease Corporation (the “Company”) [guaranteed by                            (the “Guarantor”)]

 

Ladies and Gentlemen:

 

Reference is hereby made to the Indenture, dated as of                      between Air Lease Corporation, as issuer, and                                    as trustee (the “Trustee”)[, as supplemented by that Supplemental Indenture dated                                    by and among the Company, the Trustee [and the Guarantor]] (as amended and [further] supplemented from time to time, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.

 

This letter relates to $                   principal amount of Securities that are held by the undersigned (the “Transferor”) as a beneficial interest in the Regulation S Global Security (CUSIP No.                             ) deposited with [Name of Depositary] (the “Depositary”). The Transferor has requested a transfer of such beneficial interest for an interest in the Rule 144A Global Security (CUSIP No.                             ) deposited with the Depositary.

 

In connection with such request and in respect of such Securities, the Transferor hereby certifies that such Securities are being transferred to a transferee that the Transferor reasonably believes is purchasing the Securities for its own account or an account with respect to which the transferee exercises sole investment discretion, and the transferee, as well as any such account, is a “qualified institutional buyer” within the meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable securities laws of any state of the United States or any other jurisdiction.

 

You and the Company [and the Guarantor] are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

Dated:

 

 

Very truly yours,

 

 

 

[Name of Transferor]

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 


 

EXHIBIT C

 

FORM OF CERTIFICATE FOR TRANSFERS PURSUANT TO RULE 144

 

[Date]

 

[Name of Trustee]
[Address of Trustee]

 

Re: [Note][Debenture][Other Title of Security] Due                (the “Securities”) of Air Lease Corporation (the “Company”), guaranteed by                            (the “Guarantor”)

 

Ladies and Gentlemen:

 

Reference is hereby made to the Indenture, dated as of                    between Air Lease Corporation, as issuer, and                                    as trustee (the “Trustee”)[, as supplemented by that Supplemental Indenture dated                                    by and among the Company, the Trustee [and the Guarantor]] (as amended and [further] supplemented from time to time, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.

 

In connection with our proposed sale of $                       principal amount of the Securities, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (the “Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Rule 144.

 

You and the Company [and the Guarantor] are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

Dated:

 

 

Very truly yours,

 

 

 

[Name of Transferor]

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 



Exhibit 5.1

 

[Munger, Tolles & Olson LLP Letterhead]

 

October 11, 2012

 

Air Lease Corporation
2000 Avenue of the Stars, Suite 1000N
Los Angeles, California 90067

 

Re:                                Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We have acted as special counsel to Air Lease Corporation, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3 (the “Registration Statement”), filed on October 11, 2012 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the sale by the Company from time to time of an indeterminate amount of (a) one or more series of its debt securities (“Debt Securities”) to be issued pursuant to that certain Indenture, dated as of October 11, 2012, by and between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Indenture”), filed as Exhibit 4.4 to the Registration Statement, (b) shares of its Preferred Stock, $0.01 par value per share (the “Preferred Stock”), (c) shares of its Class A Common Stock, $0.01 par value per share (the “Class A Common Stock”), (d)  warrants to purchase Debt Securities, Preferred Stock, Class A Common Stock or Depositary Shares (the “Warrants”), which will be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) to be entered into by the Company and a warrant agent (each, a “Warrant Agent”), (e) depositary shares evidencing fractional interests in shares of the Company’s Preferred Stock (“Depositary Shares”), which will be issued pursuant to one or more deposit agreements (each, a “Deposit Agreement”) to be entered into by the Company and a depositary (each, a “Depositary”), (f) rights to purchase Class A Common Stock or other Securities (as defined below) of the Company (the “Rights”), which will be issued pursuant to one or more rights agreements (each, a “Rights Agreement”) to be entered into by the Company and a rights agent (each, a “Rights Agent”), (g) purchase contracts for the purchase and sale of securities of the Company (the “Purchase Contracts”), which will be issued pursuant to one or more purchase contract agreements (each, a “Purchase Contract Agreement”) to be entered into by the Company and a purchase contract agent (each, a “Purchase Contract Agent”), and (h) units consisting of two or more of the securities of the Company (the “Units”), which will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) to be entered into by the Company and a unit agent (each, a “Unit Agent”).

 


 

Air Lease Corporation

October 11, 2012

Page 2

 

The Debt Securities, Preferred Stock, Class A Common Stock, Warrants, Depositary Shares, Rights, Purchase Contracts, and Units are herein collectively referred to as the “Securities”. Debt Securities, Preferred Stock, Warrants and Purchase Contracts may be convertible or exchangeable for other Securities. The Indenture, Warrant Agreements, Deposit Agreements, Rights Agreements, Purchase Contract Agreements and Unit Agreements are herein collectively referred to as “Securities Agreements”.

 

You have provided us with a draft of the Registration Statement in the form in which it will be filed, which includes a form of prospectus (the “Prospectus”).  The Prospectus provides that it will be supplemented in the future by one or more supplements to the Prospectus (each, a “Prospectus Supplement”) in connection with each offering of Securities.  This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, any Prospectus or any Prospectus Supplement, other than as expressly stated herein with respect to the issuance of the Securities.

 

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for purposes of this opinion.  As to certain factual matters, we have relied, with your permission and without independent verification, on the Company’s filings, including any exhibits thereto, with the Commission and certificates and other assurances of officers of the Company.  In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than the internal laws of the State of New York and the Delaware General Corporation Law, in each case as in effect as of this date. We express no opinion with respect to the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any State.

 

Subject to the foregoing and the other matters set forth herein, we are of the opinion that as of the date hereof:

 

1.              For Debt Securities issued pursuant to the Indenture, upon the due authorization and establishment of the specific terms of a particular series of Debt Securities in accordance with such Indenture and applicable law, and when the Debt Securities of such series have been duly authorized, executed, authenticated, issued and delivered in accordance with such Indenture and duly delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, such Debt Securities will constitute the valid and binding obligation of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 


 

Air Lease Corporation

October 11, 2012

Page 3

 

2.              When an issuance of Class A Common Stock has been duly authorized, the certificates for such Class A Common Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase, sale, exchange and/or conversion, such Class A Common Stock (including any Class A Common Stock duly issued (a) upon the exchange or conversion of any Debt Security or Preferred Stock that is exchangeable or convertible into Class A Common Stock, (b) upon the exercise of any Warrant or Rights exercisable for Class A Common Stock, (c) upon settlement of any Purchase Contract, or (d) as part of a Unit), will be validly issued, fully paid and nonassessable.

 

3.              When an issuance of Preferred Stock has been duly authorized, the certificate of designations, if any, establishing the terms of such Preferred Stock has been duly approved and executed by the Company and duly filed with the Secretary of State of the State of Delaware, the certificates for such Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase, sale, exchange and/or conversion, such Preferred Stock (including any Preferred Stock duly issued (a) upon the exchange or conversion of any Debt Security that is exchangeable or convertible into Preferred Stock, (b) upon the exercise of any Warrant or Rights exercisable for Preferred Stock, (c) upon surrender of any Depositary Shares, (d) upon settlement of any Purchase Contract, or (e) as part of a Unit) will be validly issued, fully paid and nonassessable.

 

4.              When a Warrant Agreement has been duly authorized, executed and delivered by the Company and a Warrant Agent and the specific terms of a particular issuance of Warrants have been duly authorized and established in accordance with such Warrant Agreement, and such Warrants have been duly authorized, executed, countersigned, issued and delivered in accordance with such Warrant Agreement and duly delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, and assuming the securities issuable upon exercise of such Warrants have been duly authorized and reserved for issuance, such Warrants will constitute the valid and binding obligation of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 

5.              When a Deposit Agreement has been duly authorized, executed and delivered by the Company and a Depositary Agent and the specific terms of a particular issuance of Depositary Shares have been duly authorized and established in accordance with such Deposit Agreement, and such Depositary Shares have been duly authorized, executed, countersigned, issued and delivered in accordance with such Deposit Agreement and duly delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, and assuming the Preferred Stock fractional interests which are evidenced by such Depositary Shares have been validly issued and are fully paid and nonassessable, such Depositary Shares will constitute the valid and binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 


 

Air Lease Corporation

October 11, 2012

Page 4

 

6.              When a Purchase Contract Agreement has been duly authorized, executed and delivered by the Company and a Purchase Contract Agent and the specific terms of a particular issuance of Purchase Contracts have been duly authorized and established in accordance with such Purchase Contract Agreement, and such Purchase Contracts have been duly authorized, executed, countersigned, issued and delivered in accordance with such Purchase Contract Agreement and delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, and assuming the other Securities issuable upon settlement of such Purchase Contracts have been duly authorized and reserved for issuance, such Purchase Contracts will constitute the valid and binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 

7.              When a Rights Agreement has been duly authorized, executed and delivered by the Company and a Rights Agent and the specific terms of a particular issuance of Rights have been duly authorized and established in accordance with such Rights Agreement, and such Rights have been duly authorized, executed, countersigned, issued and delivered in accordance with such Rights Agreement and delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, and assuming the other Securities issuable upon exercise of such Rights have been duly authorized and reserved for issuance, such Rights will constitute the valid and binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 

8.              When a Unit Agreement has been duly authorized, executed and delivered by the Company and a Unit Agent and the specific terms of a particular issuance of Units has been duly authorized and established in accordance with such Unit Agreement, and such Units have been duly authorized, executed, countersigned, issued and delivered in accordance with such Unit Agreement and delivered to the purchasers thereof, against receipt of consideration therefor in accordance with the applicable agreement for purchase and sale, and assuming that the constituent Securities of such Units have been duly authorized and reserved for issuance, such Units will constitute the valid and binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

 


 

Air Lease Corporation

October 11, 2012

Page 5

 

In connection with the opinions expressed above, we have assumed, with your consent, that, at or prior to the time of delivery of any such Security, (a) the Company shall have reserved for issuance a sufficient number of authorized shares of such Security to satisfy the maximum number of shares of such Security that may be issued pursuant to the issuance and sale of such Security, assuming the conversion, redemption, exercise or exchange of all Securities that may converted, redeemed, exercised or exchanged for such Security, if any; (b) the Company’s Board of Directors shall have duly established the terms of such Security and duly authorized the issuance and sale of such Security, in each case in accordance with applicable law and any applicable Securities Agreement, and such authorization shall not have been modified or rescinded; (c) the Company’s certificate of incorporation in effect on the date hereof remains in effect; (d) the Registration Statement shall have been declared effective and such effectiveness shall not have been terminated or rescinded; (e) the Indenture shall have been duly authorized, executed, authenticated and delivered by the applicable trustee and shall have been qualified under the Trust Indenture Act of 1939, as amended; (f) the applicable certificate of designations, if any, shall have been duly approved and executed by the Company in accordance with applicable law and duly filed with the Secretary of State of the State of Delaware in accordance with Delaware law; (g) the applicable Warrant Agreement, if any, shall have been duly authorized, executed and delivered by the Company and the applicable Warrant Agent in accordance with applicable law; (h) the applicable Deposit Agreement, if any, shall have been duly authorized, executed and delivered by the Company and the applicable Depositary in accordance with applicable law; (i) the applicable Purchase Contract Agreement shall have been duly authorized, executed and delivered by the Company and the applicable Purchase Contract Agent in accordance with applicable law; (j) the applicable Rights Agreement shall have been duly authorized, executed and delivered by the Company and the applicable Rights Agent in accordance with applicable law; (k) the applicable Unit Agreement shall have been duly authorized, executed and delivered by the Company and the applicable Unit Agent in accordance with applicable law; and (l) there will not have occurred any change in law affecting the validity or enforceability of such Security. We have further assumed that each of the Securities Agreements and the Securities will constitute the valid and binding obligations of the parties thereto other than the Company and that the status of the Securities Agreements and the Securities as valid and binding obligations of the parties thereto will not be affected by any (x) breaches of, or defaults under, agreements or instruments, (y) violations of statutes, rules, regulations or court or governmental orders or (z) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to our firm name and the discussion of our opinion under the caption “Legal Matters” in the Prospectus or any Prospectus Supplement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations thereunder.

 

 

 

Very truly yours,

 

 

 

 

 

/s/ MUNGER, TOLLES & OLSON LLP

 

 

 



Exhibit 12.1

 

COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES

(unaudited)

 

(in thousands, except ratio)

 

Six months ended
June 30, 2012

 

Year ended
December 31, 2011

 

For the period
from inception to
December 31, 2010

 

Earnings:

 

 

 

 

 

 

 

Net income (loss)

 

$

55,099

 

$

53,232

 

$

(52,040

)

Add:

 

 

 

 

 

 

 

Provision (benefit) for income taxes

 

30,395

 

29,609

 

(8,875

)

Fixed charges

 

72,039

 

68,797

 

53,673

 

Less:

 

 

 

 

 

 

 

Capitalized interest

 

(8,631

)

(10,390

)

(1,769

)

Earnings as adjusted (A)

 

$

148,902

 

$

141,248

 

$

(9,011

)

Fixed charges

 

 

 

 

 

 

 

Interest expense

 

$

63,018

 

$

57,692

 

$

51,743

 

Capitalized interest

 

8,631

 

10,390

 

1,769

 

Interest factors of rents(1)

 

390

 

715

 

161

 

Fixed charges as adjusted (B)

 

$

72,039

 

$

68,797

 

$

53,673

 

Ratio of earnings (loss) to fixed charges ((A) divided by (B))(2)

 

2.07

 

2.05

 

—

 

 

(1)                     Estimated to be 1 / 3  of rent expense.

 

(2)                     For the period from inception to December 31, 2010, earnings were insufficient to cover fixed charges by $62.7 million.

 

 



Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors
Air Lease Corporation:

 

We consent to the use of our report incorporated by reference herein and to the reference to our firm under the heading “Experts” in the prospectus.

 

 

/s/  KPMG LLP

 

 

San Francisco, California
October 11, 2012

 



Exhibit 25.1

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

 

 

FORM T-1

 

o   STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

o   CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

(formerly BANKERS TRUST COMPANY)

(Exact name of trustee as specified in its charter)

 

NEW YORK

 

13-4941247

(Jurisdiction of Incorporation or

 

(I.R.S. Employer

organization if not a U.S. national bank)

 

Identification no.)

 

60 WALL STREET

 

 

NEW YORK, NEW YORK

 

10005

(Address of principal

 

(Zip Code)

executive offices)

 

 

 

Deutsche Bank Trust Company Americas

Attention: Lynne Malina

Legal Department

60 Wall Street, 37th Floor

New York, New York 10005

(212) 250 — 0677

(Name, address and telephone number of agent for service)

 

 

Air Lease Corporation

(Exact name of obligor as specified in its charter)

 

Delaware

 

27-1840403

(State or other jurisdiction

 

(IRS Employer Identification No.)

of incorporation or organization)

 

 

 

Copies To:

 

John L. Plueger

President & Chief Operating Officer

Air Lease Corporation

2000 Avenue of the Stars, Suite 1000N

Los Angeles, CA 90067

(310) 553-0555

 

Debt Securities

(Title of the Indenture securities)

 

 

 


 

Item   1.                                                      General Information.

 

Furnish the following information as to the trustee.

 

(a)             Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

Federal Reserve Bank (2nd District)

 

New York, NY

Federal Deposit Insurance Corporation

 

Washington, D.C.

New York State Banking Department

 

Albany, NY

 

(b)                                  Whether it is authorized to exercise corporate trust powers.
Yes.

 

Item   2.                                                      Affiliations with Obligor.

 

If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None.

 

Item 3. -15.                                    Not Applicable

 

Item  16.                                                  List of Exhibits.

 

Exhibit 1 -               Restated Organization Certificate of Bankers Trust Company dated August 6, 1998, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998, and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated February 27, 2002, copies attached.

 

Exhibit 2 -                                      Certificate of Authority to commence business, copy attached.

 

Exhibit 3 -                                      Authorization of the Trustee to exercise corporate trust powers, copy attached.

 

Exhibit 4 -                                          Existing By-Laws of Deutsche Bank Trust Company Americas, as amended on April 15, 2002, copy attached.

 


 

Exhibit 5 -                                              Not applicable.

 

Exhibit 6 -                                              Consent of Bankers Trust Company required by Section 321(b) of the Act, copy attached.

 

Exhibit 7 -                                              The latest report of condition of Deutsche Bank Trust Company Americas dated as of June 30, 2012 , copy attached.

 

Exhibit 8 -                                              Not Applicable.

 

Exhibit 9 -                                              Not Applicable.

 


 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 31st day of August , 2012.

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

 

 

 

/s/ Louis Bodi

 

By:

 

Name:

Louis Bodi

 

 

 

Title:

Vice President

 

 

Exhibit 1

 

State of New York,

 

Banking Department

 

I, MANUEL KURSKY , Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,” dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate.

 

Witness, my hand and official seal of the Banking Department at the City of New York,

 

this 31st day of August in the Year of our Lord one thousand nine hundred and ninety-eight .

 

 

Manuel Kursky

 

Deputy Superintendent of Banks

 


 

RESTATED

ORGANIZATION

CERTIFICATE

OF

BANKERS TRUST COMPANY

 

 

Under Section 8007

Of the Banking Law

 

 

Bankers Trust Company

1301 6 th  Avenue, 8 th  Floor

New York, N.Y. 10019

 

Counterpart Filed in the Office of the Superintendent of Banks, State of New York, August 31, 1998

 


 

RESTATED ORGANIZATION CERTIFICATE

OF

BANKERS TRUST

Under Section 8007 of the Banking Law

 

 

We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary and a Vice President and an Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify:

 

1.                                        The name of the corporation is Bankers Trust Company.

 

2.                                        The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on March 5, 1903.

 

3.                                        The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or change to read as herein-set forth in full, to wit:

 

“Certificate of Organization

of

Bankers Trust Company”

 

Know All Men By These Presents That we, the undersigned, James A. Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young, all being persons of full age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit:

 

I.                                          The name by which the said corporation shall be known is Bankers Trust Company.

 

II.                                      The place where its business is to be transacted is the City of New York, in the State of New York.

 

III.                                  Capital Stock:  The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.

 

(a)                                   Common Stock

 

1.                                        Dividends:  Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation legally available for the payment of dividends.

 

2.                                        Voting Rights:  Except as otherwise expressly provided with respect to the Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote

 


 

for the election of directors and for all other purposes, each holder of the Common Stock being entitled to one vote for each share thereof held.

 

3.                                        Liquidation:  Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock.

 

4.                                        Preemptive Rights:  No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution.

 

(b)                                  Series Preferred Stock

 

1.                                        Board Authority:  The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or more series.  The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any other series.  The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, buy without limiting the generality of the foregoing, the following:

 

(i)                                      The number of shares to constitute such series (which number may at any time, or from time to time, be increased or decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive designation thereof;

 

(ii)                                   The dividend rate on the shares of such series, whether or not dividends on the shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative;

 

(iii)                                Whether or not the share of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or amounts per share (which shall be, in the case of each share, not less than its preference upon involuntary liquidation, plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable thereon in the case of the redemption thereof, which amount may vary at different redemption dates or otherwise as permitted by law;

 

(iv)                               The right, if any, of holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion rate in such events as the Board of Directors shall determine;

 

(v)                                  The amount per share payable on the shares of such series upon the voluntary and involuntary liquidation, dissolution or winding up of the corporation;

 

(vi)                               Whether the holders of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and

 

(vii)                            Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights and privileges of such series, provided, however, that no such rights, privileges,

 


 

qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of which there are shares outstanding.

 

All shares of Series Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate.  All shares of Series Preferred Stock of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative rights, preferences and limitations described or referred to in subparagraphs (I) to (vii) inclusive above.

 

2.                                        Dividends:  Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same quarterly dividend period.  Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law.  After dividends on all shares of Series Preferred Stock (including cumulative dividends if and to the extent any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor.

 

All Shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably in the payment thereof in accordance with the sums which would be payable on such shares if all dividends were paid in full, provided, however, that any two or more series of the Series Preferred Stock may differ from each other as to the existence and extent of the right to cumulative dividends, as aforesaid.

 

3.                                        Voting Rights:  Except as otherwise specifically provided in the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes.

 

4.                                        Liquidation:  In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment in full set aside, before any payments shall be made to the holders of the Common Stock.  If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective amounts which would be payable if all amounts payable thereon were paid in full.  After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the corporation shall be divided and paid to the holders of the Common Stock.

 

5.                                        Redemption:  In the event that the Series Preferred Stock of any series shall be made redeemable as provided in clause (iii) of paragraph 1 of section (b) of this Article III, the corporation, at the option of the Board of Directors, may redeem at any time or times, and from time to time, all or any part of any one or more series of Series Preferred Stock outstanding by paying for each share the then applicable redemption price fixed by the Board of Directors as provided herein, plus an amount equal to accrued and unpaid dividends to the date fixed for redemption, upon such notice and terms as may be specifically provided in the certificate filed pursuant to law with respect to the series.

 

6.                                        Preemptive Rights:  No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter or right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities

 


 

convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend.

 

(c)                                   Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.)

 

1.                                        Designation:  The distinctive designation of the series established hereby shall be “Floating Rate Non-Cumulative Preferred Stock, Series A” (hereinafter called “Series A Preferred Stock”).

 

2.                                        Number:  The number of shares of Series A Preferred Stock shall initially be 250 shares.  Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series.

 

3.                                        Dividends:

 

(a)                                   Dividend Payments Dates.  Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, from the date of original issuance of such shares (the “Issue Date”) and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year (“Dividend Payment Date”) commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below.  The period beginning on the Issue Date and ending on the day preceding the first Dividend Payment Date and each successive period beginning on a Dividend Payment Date and ending on the date preceding the next succeeding Dividend Payment Date is herein called a “Dividend Period”.  If any Dividend Payment Date shall be, in The City of New York, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest shall accrue for such Dividend Period after such Dividend Payment Date.

 

(b)                                  Dividend Rate.  The dividend rate from time to time payable in respect of Series A Preferred Stock (the “Dividend Rate”) shall be determined on the basis of the following provisions:

 

(i)                                      On the Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date.  If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination Dates will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates.  If fewer than those offered rates appear, LIBOR in respect of such Dividend Determination Date will be determined as described in paragraph (ii) below.

 

(ii)                                   On any Dividend Determination Date on which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (I) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market.  The corporation will request the principal London office of each of such banks to provide a quotation of its rate.  If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such quotations.  If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans in U.S. dollars to leading European banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation

 


 

are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period, LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period.

 

(ii)                                   The Dividend Rate for any Dividend Period shall be equal to the lower of 18% or 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (I) or (ii) above.

 

As used above, the term “Dividend Determination Date” shall mean, with respect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and the term “London Business Day” shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

 

4.                                        Voting Rights:  The holders of the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law.

 

So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by resolution adopted at a meeting at which the holders of Series A Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter the provisions of the Series Preferred Stock so as to materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the organization certificate shall not be, nor be deemed to be, materially adverse alterations.  In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other series shall have such number of votes, if any, for each share of stock held as may be granted to them.

 

The foregoing voting provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock.

 

5.                                        Liquidation:  Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the “liquidation value”) together with the amount of all dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments.

 

6.                                        Redemption:  Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption.

 

At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of authorized but unissued shares of Series Preferred Stock.

 

In the case of any redemption, the corporation shall give notice of such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place of redemption (and, if less than the total outstanding shares are to be redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as the same shall appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption.  In the event such notice is not given to any shareholder such failure to give notice shall not affect the notice given to other shareholders.  If less than the whole amount of outstanding Series A

 


 

Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of the Board of Directors to be fair and proper.  From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate.  The corporation’s obligation to provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may be an affiliate of the corporation) having an office in the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000 funds necessary for such redemption, in trust with irrevocable instructions that such funds be applied to the redemption of the shares of Series A Preferred Stock so called for redemption.  Any interest accrued on such funds shall be paid to the corporation from time to time.  Any funds so deposited and unclaimed at the end of two (2) years from such redemption date shall be released or repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price.

 

IV.                                  The name, residence and post office address of each member of the corporation are as follows:

 

Name

 

Residence

 

Post Office Address

 

 

 

 

 

James A. Blair

 

9 West 50 th  Street,

 Manhattan, New York City

 

33 Wall Street,

 Manhattan, New York City

 

 

 

 

 

James G. Cannon

 

72 East 54 th  Street,

 Manhattan New York City

 

14 Nassau Street,

 Manhattan, New York City

 

 

 

 

 

E. C. Converse

 

3 East 78 th  Street,

 Manhattan, New York City

 

139 Broadway,

 Manhattan, New York City

 

 

 

 

 

Henry P. Davison

 

Englewood,

 New Jersey

 

2 Wall Street,

 Manhattan, New York City

 

 

 

 

 

Granville W. Garth

 

160 West 57 th  Street,

 Manhattan, New York City

 

33 Wall Street

 Manhattan, New York City

 

 

 

 

 

A. Barton Hepburn

 

205 West 57 th  Street

 Manhattan, New York City

 

83 Cedar Street

 Manhattan, New York City

 

 

 

 

 

William Logan

 

Montclair,

 New Jersey

 

13 Nassau Street

 Manhattan, New York City

 

 

 

 

 

George W. Perkins

 

Riverdale,

 New York

 

23 Wall Street,

 Manhattan, New York City

 

 

 

 

 

William H. Porter

 

56 East 67 th  Street

 Manhattan, New York City

 

270 Broadway,

 Manhattan, New York City

 

 

 

 

 

John F. Thompson

 

Newark,

 New Jersey

 

143 Liberty Street,

 Manhattan, New York City

 

 

 

 

 

Albert H. Wiggin

 

42 West 49 th  Street,

 Manhattan, New York City

 

214 Broadway,

 Manhattan, New York City

 


 

Samuel Woolverton

 

Mount Vernon,

 New York

 

34 Wall Street,

 Manhattan, New York City

 

 

 

 

 

Edward F.C. Young

 

85 Glenwood Avenue,

 Jersey City, New Jersey

 

1 Exchange Place,

 Jersey City, New Jersey

 

V.                                      The existence of the corporation shall be perpetual.

 

VI.                                  The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized accordance with the provisions of the Banking Law of the State of New York.

 

VII.                              The number of directors of the corporation shall not be less than 10 nor more than 25.”

 

4.                                        The foregoing restatement of the organization certificate was authorized by the Board of Directors of the corporation at a meeting held on July 21, 1998.

 

IN WITNESS WHEREOF, we have made and subscribed this certificate this 6 th  day of August, 1998.

 

 

 

/s/ James T. Byrne, Jr.

 

James T. Byrne, Jr.

 

Managing Director and Secretary

 

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen

 

Vice President and Assistant Secretary

 


 

 

 

 

State of New York

)

 

 

)

ss:

County of New York

)

 

 

Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.

 

 

 

/s/ Lea Lahtinen

 

 

Lea Lahtinen

 

 

 

Sworn to before me this

 

 

6th day of August, 1998.

 

 

 

 

 

 

 

 

Sandra L. West

 

 

 

Notary Public

 

 

 

 

 

 

 

SANDRA L. WEST

 

 

 

Notary Public State of New York

 

 

 

No. 31-4942101

 

 

 

Qualified in New York County

 

 

 

Commission Expires September 19, 1998

 

 

 

 

 

State of New York,

 

Banking Department

 

I, MANUEL KURSKY , Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law,” dated September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.

 

Witness, my hand and official seal of the Banking Department at the City of New York,

 

this 25th day of September in the Year of our Lord one thousand nine hundred and ninety-eight .

 

 

/s/ Manuel Kursky

 

Deputy Superintendent of Banks

 


 

CERTIFICATE OF AMENDMENT

OF THE

ORGANIZATION CERTIFICATE

OF BANKERS TRUST

 

Under Section 8005 of the Banking Law

 

 

We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:

 

1.   The name of the corporation is Bankers Trust Company.

 

2.   The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.

 

3.   The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.

 

4.   Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:

 

“III.   The amount of capital stock which the corporation is hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”

 

is hereby amended to read as follows:

 

“III.   The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”

 


 

5.   The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.

 

IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th day of September, 1998

 

 

 

/s/ James T. Byrne, Jr.

 

James T. Byrne, Jr.

 

Managing Director and Secretary

 

 

 

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen

 

Vice President and Assistant Secretary

 

State of New York

)

 

) ss:

County of New York

)

 

Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen

 

 

Sworn to before me this 25 th  day

of September, 1998

 

 

Sandra L. West

 

Notary Public

 

 

SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000

 

 

 

State of New York,

 

Banking Department

 

I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law,” dated December 16, 1998, providing for an increase in authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.

 

Witness, my hand and official seal of the Banking Department at the City of New York,

 

this 18th day of December in the Year of our Lord one thousand nine hundred and ninety-eight .

 

 

/s/ P. Vincent Conlon

 

Deputy Superintendent of Banks

 


 

CERTIFICATE OF AMENDMENT

 

OF THE

 

ORGANIZATION CERTIFICATE

 

OF BANKERS TRUST

 

Under Section 8005 of the Banking Law

 

 

We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:

 

1.   The name of the corporation is Bankers Trust Company.

 

2.   The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.

 

3.   The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.

 

4.   Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:

 

“III.   The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”

 

is hereby amended to read as follows:

 

“III.   The amount of capital stock which the corporation is hereafter to have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”

 


 

5.   The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.

 

IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998

 

 

 

/s/James T. Byrne, Jr.

 

James T. Byrne, Jr.

 

Managing Director and Secretary

 

 

 

 

 

/s/Lea Lahtinen

 

Lea Lahtinen

 

Vice President and Assistant Secretary

 

State of New York

)

 

)  ss:

County of New York

)

 

Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.

 

 

/s/Lea Lahtinen

 

Lea Lahtinen

 

Sworn to before me this 16 th  day

of December, 1998

 

/s/ Sandra L. West

 

Notary Public

 

 

SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000

 

 


 

BANKERS TRUST COMPANY

 

ASSISTANT SECRETARY’S CERTIFICATE

 

I, Lea Lahtinen, Vice President and Assistant Secretary of Bankers Trust Company, a corporation duly organized and existing under the laws of the State of New York, the United States of America, do hereby certify that attached copy of the Certificate of Amendment of the Organization Certificate of Bankers Trust Company, dated February 27, 2002, providing for a change of name of Bankers Trust Company to Deutsche Bank Trust Company Americas and approved by the New York State Banking Department on March 14, 2002 to effective on April 15, 2002, is a true and correct copy of the original Certificate of Amendment of the Organization Certificate of Bankers Trust Company on file in the Banking Department, State of New York.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of Bankers Trust Company this 4th day of April, 2002.

 

[SEAL]

 

 

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen, Vice President and Assistant Secretary

 

Bankers Trust Company

 

 

State of New York

)

 

 

)

ss.:

County of New York

)

 

 

On the 4th day of April in the year 2002 before me, the undersigned, a Notary Public in and for said state, personally appeared Lea Lahtinen, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person on behalf of which the individual acted, executed the instrument.

 

 

/s/ Sonja K. Olsen

 

Notary Public

 

 

SONJA K. OLSEN

 

Notary Public, State of New York

 

No. 01OL4974457

 

Qualified in New York County

 

Commission Expires November 13, 2002

 

 


 

State of New York,

 

Banking Department

 

I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY under Section 8005 of the Banking Law” dated February 27, 2002, providing for a change of name of BANKERS TRUST COMPANY to DEUTSCHE BANK TRUST COMPANY AMERICAS.

 

Witness, my hand and official seal of the Banking Department at the City of New York,                                                      this 14th day of March two thousand and two.

 

 

/s/ P. Vincent Conlon

 

Deputy Superintendent of Banks

 


 

CERTIFICATE OF AMENDMENT

 

OF THE

 

ORGANIZATION CERTIFICATE

 

OF

 

BANKERS TRUST COMPANY

 

Under Section 8005 of the Banking Law

 

 

We, James T. Byrne Jr., and Lea Lahtinen, being respectively the Secretary, and Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:

 

1. The name of corporation is Bankers Trust Company.

 

2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.

 

3. Pursuant to Section 8005 of the Banking Law, attached hereto as Exhibit A is a certificate issued by the State of New York, Banking Department listing all of the amendments to the Organization Certificate of Bankers Trust Company since its organization that have been filed in the Office of the Superintendent of Banks.

 

4. The organization certificate as heretofore amended is hereby amended to change the name of Bankers Trust Company to Deutsche Bank Trust Company Americas to be effective on April 15, 2002.

 

5. The first paragraph number 1 of the organization of Bankers Trust Company with the reference to the name of the Bankers Trust Company, which reads as follows:

 

“1.  The name of the corporation is Bankers Trust Company.”

 

is hereby amended to read as follows effective on April 15, 2002:

 

“1.  The name of the corporation is Deutsche Bank Trust Company Americas.”

 


 

6. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.

 

IN WITNESS WHEREOF, we have made and subscribed this certificate this 27th day of February, 2002.

 

 

/s/ James T. Byrne Jr.

 

James T. Byrne Jr.

 

Secretary

 

 

 

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen

 

Vice President and Assistant Secretary

 

 

State of New York

)

 

 

)

ss.:

County of New York

)

 

 

Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.

 

 

/s/ Lea Lahtinen

 

Lea Lahtinen

 

Sworn to before me this 27th day
of February, 2002

 

 

/s/ Sandra L. West

 

Notary Public

 

 

SANDRA L. WEST

 

Notary Public, State of New York

 

No. 01WE4942401

 

Qualified in New York County

 

Commission Expires September 19, 2002

 

 

 

EXHIBIT A

 

State of New York

 

Banking Department

 

I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY CERTIFY:

 

THAT, the records in the Office of the Superintendent of Banks indicate that BANKERS TRUST COMPANY is a corporation duly organized and existing under the laws of the State of New York as a trust company, pursuant to Article III of the Banking Law; and

 

THAT, the Organization Certificate of BANKERS TRUST COMPANY was filed in the Office of the Superintendent of Banks on March 5, 1903, and such corporation was authorized to commence business on March 24, 1903; and

 

THAT, the following amendments to its Organization Certificate have been filed in the Office of the Superintendent of Banks as of the dates specified:

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on January 14, 1905

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on August 4, 1909

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on February 1, 1911

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on June 17, 1911

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on August 8, 1911

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on August 8, 1911

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on March 21, 1912

 


 

Certificate of Amendment of Certificate of Incorporation providing for a decrease in number of directors - filed on January 15, 1915

 

Certificate of Amendment of Certificate of Incorporation providing for a decrease in number of directors - filed on December 18, 1916

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 20, 1917

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on April 20, 1917

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 28, 1918

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 4, 1919

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on January 15, 1926

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on June 12, 1928

 

Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on April 4, 1929

 

Certificate of Amendment of Certificate of Incorporation providing for a minimum and maximum number of directors - filed on January 11, 1934

 

Certificate of Extension to perpetual - filed on January 13, 1941

 

Certificate of Amendment of Certificate of Incorporation providing for a minimum and maximum number of directors - filed on January 13, 1941

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 11, 1944

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed January 30, 1953

 

Restated Certificate of Incorporation - filed November 6, 1953

 


 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 8, 1955

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 1, 1960

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on July 14, 1960

 

Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on September 30, 1960

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on January 26, 1962

 

Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on September 9, 1963

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 7, 1964

 

Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 24, 1965

 

Certificate of Amendment of the Organization Certificate providing for a decrease in capital stock - filed January 24, 1967

 

Restated Organization Certificate - filed June 1, 1971

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed October 29, 1976

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 22, 1977

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed August 5, 1980

 

Restated Organization Certificate - filed July 1, 1982

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1984

 


 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 18, 1986

 

Certificate of Amendment of the Organization Certificate providing for a minimum and maximum number of directors - filed January 22, 1990

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 28, 1990

 

Restated Organization Certificate - filed August 20, 1990

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 26, 1992

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 28, 1994

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 23, 1995

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1995

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 21, 1996

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1996

 

Certificate of Amendment to the Organization Certificate providing for an increase in capital stock - filed June 27, 1997

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 26, 1997

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 29, 1997

 


 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 26, 1998

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 23, 1998

 

Restated Organization Certificate - filed August 31, 1998

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 25, 1998

 

Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 18, 1998; and

 

Certificate of Amendment of the Organization Certificate providing for a change in the number of directors - filed September 3, 1999; and

 

THAT, no amendments to its Restated Organization Certificate have been filed in the Office of the Superintendent of Banks except those set forth above; and attached hereto; and

 

I DO FURTHER CERTIFY THAT, BANKERS TRUST COMPANY is validly existing as a banking organization with its principal office and place of business located at 130 Liberty Street, New York, New York.

 

WITNESS, my hand and official seal of the Banking Department at the City of New York this 16th day of October in the Year Two Thousand and One.

 

 

 

/s/ P. Vincent Conlon

 

Deputy Superintendent of Banks

 

 

Exhibit 2

 

State of New York. Banking Department. Know all Men by these Presents, That I, FREDERICK D. KILBURN, Superintendent of Banks of the State of New York, do hereby Certify that the following named persons, to wit: JAMES A. BLAIR, JAMES G. CANNON, E.C. CONVERSE, H.P.DAVISON, G.W. GARTh, A. BARTON hEPBURN, WILLIAM LOGAN, G.W. McGARRAh, G.W. PERKINS, Wm K. PORTER, J.F. ThOMPSON, ALBERT h. WIGGIN, SAMUEL WOOLVERTON, E.F.C. YOUNG, have filed in this Department on Organization Certificate of the BANKERS TRUST COMPANY to be located in the City of NEW YORK in the County of NEW YORK and have complied with the provisions of Chapter 689 of the Laws of 1892, entitled” An Act in relation to Banking Corporations,” and with all the requirements of Law. That in pursuance of the authority conferred upon me by law, I do hereby authorize the above named persons to become and transact the business of a trust company under the title of BANKERS TRUST COMPANY with a Capital Stock of ONE MILLoON ($1,000,000,00) Dollars, in accordance with such Certificate of Organization and the Laws of this State, and that such business may be safely instrusted to it. In Witness Wbereor, I have hereunto set my hand and affixed my Official Seal, this 24th day of march, in the year one thousand nine hundred and three Superintendet.

 

 

Exhibit 3

 

State of New York Banking Department I, DAVID S. FREDSALL, Deputy Superintendent of Banks of the State of New York, DO HEREBY CERTIFY: THAT, DEUTSCHE BANK TRUST COMPANY AMERICAS, is a corporation duly organized and existing under the laws of the State of New York and has its principal office and place of business at 60 Wall Street, New York, New York. Such corporation is validly existing as a banking organization under the Banking Law of the State of New York. The authorization certificate of such corporation has not been revoked or suspended and such corporation is a subsisting trust company under the supervision of this Department. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 17th day of March in the Year two thousand and nine. Deputy Superintendent of Banks

 

 

 

Exhibit 4

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

 

BY-LAWS

 

 

APRIL 15, 2002

 

 

Deutsche Bank Trust Company Americas

 

New York

 


 

BY-LAWS

of

 

Deutsche Bank Trust Company Americas

 

ARTICLE I

 

MEETINGS OF STOCKHOLDERS

 

SECTION 1.           The annual meeting of the stockholders of this Company shall be held at the office of the Company in the Borough of Manhattan, City of New York, in January of each year, for the election of directors and such other business as may properly come before said meeting.

 

SECTION 2.           Special meetings of stockholders other than those regulated by statute may be called at any time by a majority of the directors.  It shall be the duty of the Chairman of the Board, the Chief Executive Officer, the President or any Co-President to call such meetings whenever requested in writing to do so by stockholders owning a majority of the capital stock.

 

SECTION 3.           At all meetings of stockholders, there shall be present, either in person or by proxy, stockholders owning a majority of the capital stock of the Company, in order to constitute a quorum, except at special elections of directors, as provided by law, but less than a quorum shall have power to adjourn any meeting.

 

SECTION 4.           The Chairman of the Board or, in his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, the senior officer present, shall preside at meetings of the stockholders and shall direct the proceedings and the order of business.  The Secretary shall act as secretary of such meetings and record the proceedings.

 

ARTICLE II

 

DIRECTORS

 

SECTION 1.           The affairs of the Company shall be managed and its corporate powers exercised by a Board of Directors consisting of such number of directors, but not less than seven nor more than fifteen, as may from time to time be fixed by resolution adopted by a majority of the directors then in office, or by the stockholders.  In the event of any increase in the number of directors, additional directors may be elected within the limitations so fixed, either by the stockholders or within the limitations imposed by law, by a majority of directors then in office.  One-third of the number of directors, as fixed from time to time, shall constitute a quorum.  Any one or more members of the Board of Directors or any Committee thereof may participate in a meeting of the Board of Directors or Committee thereof by means of a conference telephone, video conference or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time.  Participation by such means shall constitute presence in person at such a meeting.

 


 

All directors hereafter elected shall hold office until the next annual meeting of the stockholders and until their successors are elected and have qualified.

 

No Officer-Director who shall have attained age 65, or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director.

 

SECTION 2.           Vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.

 

SECTION 3.           The Chairman of the Board shall preside at meetings of the Board of Directors.  In his absence, the Chief Executive Officer or, in his absence the President or any Co-President or, in their absence such other director as the Board of Directors from time to time may designate shall preside at such meetings.

 

SECTION 4.           The Board of Directors may adopt such Rules and Regulations for the conduct of its meetings and the management of the affairs of the Company as it may deem proper, not inconsistent with the laws of the State of New York, or these By-Laws, and all officers and employees shall strictly adhere to, and be bound by, such Rules and Regulations.

 

SECTION 5.           Regular meetings of the Board of Directors shall be held from time to time provided, however, that the Board of Directors shall hold a regular meeting not less than six times a year, provided that during any three consecutive calendar months the Board of Directors shall meet at least once, and its Executive Committee shall not be required to meet at least once in each thirty day period during which the Board of Directors does not meet. Special meetings of the Board of Directors may be called upon at least two day’s notice whenever it may be deemed proper by the Chairman of the Board or, the Chief Executive Officer or, the President or any Co-President or, in their absence, by such other director as the Board of Directors may have designated pursuant to Section 3 of this Article, and shall be called upon like notice whenever any three of the directors so request in writing.

 

SECTION 6.           The compensation of directors as such or as members of committees shall be fixed from time to time by resolution of the Board of Directors.

 

ARTICLE III

 

COMMITTEES

 

SECTION 1.           There shall be an Executive Committee of the Board consisting of not less than five directors who shall be appointed annually by the Board of Directors.  The Chairman of the Board shall preside at meetings of the Executive Committee.  In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Committee as the Committee from time to time may designate shall preside at such meetings.

 


 

The Executive Committee shall possess and exercise to the extent permitted by law all of the powers of the Board of Directors, except when the latter is in session, and shall keep minutes of its proceedings, which shall be presented to the Board of Directors at its next subsequent meeting. All acts done and powers and authority conferred by the Executive Committee from time to time shall be and be deemed to be, and may be certified as being, the act and under the authority of the Board of Directors.

 

A majority of the Committee shall constitute a quorum, but the Committee may act only by the concurrent vote of not less than one-third of its members, at least one of who must be a director other than an officer. Any one or more directors, even though not members of the Executive Committee, may attend any meeting of the Committee, and the member or members of the Committee present, even though less than a quorum, may designate any one or more of such directors as a substitute or substitutes for any absent member or members of the Committee, and each such substitute or substitutes shall be counted for quorum, voting, and all other purposes as a member or members of the Committee.

 

SECTION 2.           There shall be an Audit Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of directors, who are not also officers of the Company, as may from time to time be fixed by resolution adopted by the Board of Directors. The Chairman shall be designated by the Board of Directors, who shall also from time to time fix a quorum for meetings of the Committee.  Such Committee shall conduct the annual directors’ examinations of the Company as required by the New York State Banking Law; shall review the reports of all examinations made of the Company by public authorities and report thereon to the Board of Directors; and shall report to the Board of Directors such other matters as it deems advisable with respect to the Company, its various departments and the conduct of its operations.

 

In the performance of its duties, the Audit Committee may employ or retain, from time to time, expert assistants, independent of the officers or personnel of the Company, to make studies of the Company’s assets and liabilities as the Committee may request and to make an examination of the accounting and auditing methods of the Company and its system of internal protective controls to the extent considered necessary or advisable in order to determine that the operations of the Company, including its fiduciary departments, are being audited by the General Auditor in such a manner as to provide prudent and adequate protection.  The Committee also may direct the General Auditor to make such investigation as it deems necessary or advisable with respect to the Company, its various departments and the conduct of its operations.  The Committee shall hold regular quarterly meetings and during the intervals thereof shall meet at other times on call of the Chairman.

 

SECTION 3.           The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees.  Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.

 


 

ARTICLE IV

 

OFFICERS

 

SECTION 1.           The Board of Directors shall elect from among their number a Chairman of the Board and a Chief Executive Officer; and shall also elect a President, or two or more Co-Presidents, and may also elect, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Managing Directors, one or more Senior Vice Presidents, one or more Directors, one or more Vice Presidents, one or more General Managers, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, a General Credit Auditor, who need not be directors.  The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board.  The Chairman of the Board or the Chief Executive Officer or, in their absence, the President or any Co-President, or any Vice Chairman, may from time to time appoint assistant officers.  All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the President, or any Co-President or any Vice Chairman.  The Board of Directors may require any and all officers and employees to give security for the faithful performance of their duties.

 

SECTION 2.           The Board of Directors shall designate the Chief Executive Officer of the Company who may also hold the additional title of Chairman of the Board, or President, or any Co-President, and such person shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee, all of the powers vested in such Chief Executive Officer by law or by these By-Laws, or which usually attach or pertain to such office.  The other officers shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee or the Chairman of the Board or, the Chief Executive Officer, the powers vested by law or by these By-Laws in them as holders of their respective offices and, in addition, shall perform such other duties as shall be assigned to them by the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer.

 

The General Auditor shall be responsible, through the Audit Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls.  Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws.  He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit Committee.  The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates.  He shall have the duty to report to the Audit Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit Committee may request.  Additionally, the General Auditor shall have the duty of reporting independently of all officers of the Company to the Audit Committee at least quarterly on any matters concerning the internal audit program and the adequacy of the system of internal controls of the Company that should be brought to the attention of the directors

 


 

except those matters responsibility for which has been vested in the General Credit Auditor.  Should the General Auditor deem any matter to be of special immediate importance, he shall report thereon forthwith to the Audit Committee.  The General Auditor shall report to the Chief Financial Officer only for administrative purposes.

 

The General Credit Auditor shall be responsible to the Chief Executive Officer and, through the Audit Committee, to the Board of Directors for the systems of internal credit audit, shall perform such other duties as the Chief Executive Officer may prescribe, and shall make such examinations and reports as may be required by the Audit Committee.  The General Credit Auditor shall have unrestricted access to all records and may delegate such authority to subordinates.

 

SECTION 3.           The compensation of all officers shall be fixed under such plan or plans of position evaluation and salary administration as shall be approved from time to time by resolution of the Board of Directors.

 

SECTION 4.           The Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any person authorized for this purpose by the Chief Executive Officer, shall appoint or engage all other employees and agents and fix their compensation.  The employment of all such employees and agents shall continue during the pleasure of the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer or any such authorized person; and the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any such authorized person may discharge any such employees and agents at will.

 

ARTICLE V

 

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS

 

SECTION 1.           The Company shall, to the fullest extent permitted by Section 7018 of the New York Banking Law, indemnify any person who is or was made, or threatened to be made, a party to an action or proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency, including an action by or in the right of the Company to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company is servicing or served in any capacity at the request of the Company by reason of the fact that he, his testator or intestate, is or was a director or officer of the Company, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement, and costs, charges and expenses, including attorneys’ fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either

 


 

case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.

 

SECTION 2.           The Company may indemnify any other person to whom the Company is permitted to provide indemnification or the advancement of expenses by applicable law, whether pursuant to rights granted pursuant to, or provided by, the New York Banking Law or other rights created by (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, it being expressly intended that these By-Laws authorize the creation of other rights in any such manner.

 

SECTION 3.           The Company shall, from time to time, reimburse or advance to any person referred to in Section 1 the funds necessary for payment of expenses, including attorneys’ fees, incurred in connection with any action or proceeding referred to in Section 1, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.

 

SECTION 4.           Any director or officer of the Company serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the Company, or (ii) any employee benefit plan of the Company or any corporation referred to in clause (i) in any capacity shall be deemed to be doing so at the request of the Company.  In all other cases, the provisions of this Article V will apply (i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the Company, evidenced by a written communication signed by the Chairman of the Board, the Chief Executive Officer, the President or any Co-President, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, the President or any Co-President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer.

 

SECTION 5.           Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time indemnification is sought.

 

SECTION 6.           The right to be indemnified or to the reimbursement or advancement of expense pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the Company and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto.

 


 

SECTION 7.           If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the Company within thirty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim.  Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstance, nor an actual determination by the Company (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled.

 

SECTION 8.           A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 1 shall be entitled to indemnification only as provided in Sections 1 and 3, notwithstanding any provision of the New York Banking Law to the contrary.

 

ARTICLE VI

 

SEAL

 

SECTION 1.           The Board of Directors shall provide a seal for the Company, the counterpart dies of which shall be in the charge of the Secretary of the Company and such officers as the Chairman of the Board, the Chief Executive Officer or the Secretary may from time to time direct in writing, to be affixed to certificates of stock and other documents in accordance with the directions of the Board of Directors or the Executive Committee.

 

SECTION 2.           The Board of Directors may provide, in proper cases on a specified occasion and for a specified transaction or transactions, for the use of a printed or engraved facsimile seal of the Company.

 

ARTICLE VII

 

CAPITAL STOCK

 

SECTION 1.           Registration of transfer of shares shall only be made upon the books of the Company by the registered holder in person, or by power of attorney, duly executed, witnessed and filed with the Secretary or other proper officer of the Company, on the surrender of the certificate or certificates of such shares properly assigned for transfer.

 


 

ARTICLE VIII

 

CONSTRUCTION

 

SECTION 1.           The masculine gender, when appearing in these By-Laws, shall be deemed to include the feminine gender.

 

ARTICLE IX

 

AMENDMENTS

 

SECTION 1.           These By-Laws may be altered, amended or added to by the Board of Directors at any meeting, or by the stockholders at any annual or special meeting, provided notice thereof has been given.

 

 

Exhibit 6

 

March 7, 1980

 

Securities and Exchange Commission
Washington, D.C. 20549

 

Gentlemen:

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, Bankers Trust Company does hereby consent as a condition precedent to the qualification of the Indenture dated as of March 1, 1980 for the Crystal Oil Company and any and of all future Indentures to be qualified under the Act for which Bankers Trust Company will act as Trustee, that all reports of examination by Federal and State authorities including 1) the Federal Reserve Bank of New York, 2) the Federal Deposit Insurance Corporation and the New York State Banking Department may be furnished by such authorities to the Commission upon request therefor for the purposes and upon the conditions set forth in said Section 321.

 

 

Bankers Trust Company

 

 

 

 

 

 

By

/s/ Richard S. Denny

 

 

Richard S. Denny

 

 

Secretary

 

 

Exhibit 7

 

DEUTSCHE BANK TRUST COMPANY AMERICAS FFIEC 031 Legal Title of Bank Page 15 of 71 RC-1 NEW YORK City NY 10005 State Zip Code FDIC Certificate Number: 00623 Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2012 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet Dollar Amounts in Thousands RCFD Tril | Bil | Mil | Thou Assets 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) 0081 158,000 1.a b. Interest-bearing balances (2) 0071 17,079,000 1.b 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D) 1773 168,000 2.b 3. Federal funds sold and securities purchased under agreements to resell: RCON a. Federal funds sold in domestic offices B987 142,000 3.a RCFD b. Securities purchased under agreements to resell (3) B989 9,000 3.b 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale 5369 0 4.a b. Loans and leases, net of unearned income B528 19,937,000 4.b c. LESS: Allowance for loan and lease losses 3123 84,000 4.c d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) B529 19,853,000 4.d 5. Trading assets (from Schedule RC-D) 3545 4,317,000 5 6. Premises and fixed assets (including capitalized leases) 2145 51,000 6 7. Other real estate owned (from Schedule RC-M) 2150 17,000 7 8. Investments in unconsolidated subsidiaries and associated companies 2130 0 8 9. Direct and indirect investments in real estate ventures 3656 0 9 10. Intangible assets: a. Goodwill 3163 0 10.a b. Other intangible assets (from Schedule RC-M) 0426 40,000 10.b 11. Other assets (from Schedule RC-F) 2160 5,300,000 11 12. Total assets (sum of items 1 through 11) 2170 47,134,000 12 (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. (3) Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.

 


DEUTSCHE BANK TRUST COMPANY AMERICAS FFIEC 031 Legal Title of Bank Page 15a of 71 FDIC Certificate Number: 00623 RC-1a Schedule RC—Continued Dollar Amounts in Thousands RCON Tril | Bil | Mil | Thou Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) 2200 23,248,000 13.a (1) Noninterest-bearing (1) 6631 17,855,000 13.a.1 (2) Interest-bearing 6636 5,393,000 13.a.2 RCFN b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) 2200 8,141,000 13.b (1) Noninterest-bearing 6631 3,824,000 13.b.1 (2) Interest-bearing 6636 4,317,000 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase: RCON a.Federal funds purchased in domestic offices (2) B993 4,447,000 14.a RCFD b.Securities sold under agreements to repurchase (3) B995 0 14.b 15. Trading liabilities (from Schedule RC-D) 3548 364,000 15 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) 3190 238,000 16 17. and 18. Not applicable 19. Subordinated notes and debentures (4) 3200 0 19 20. Other liabilities (from Schedule RC-G) 2930 2,079,000 20 21. Total liabilities (sum of items 13 through 20) 2948 38,517,000 21 22. Not applicable (1) Includes noninterest-bearing demand, time, and savings deposits. (2) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” (3) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. (4) Includes limited-life preferred stock and related surplus.

 


DEUTSCHE BANK TRUST COMPANY AMERICAS FFIEC 031 Legal Title of Bank Page 16 of 71 FDIC Certificate Number: 00623 RC-2 Equity Capital Bank Equity Capital 23. Perpetual preferred stock and related surplus 3838 0 23 24. Common stock 3230 2,127,000 24 25. Surplus (excludes all surplus related to preferred stock) 3839 595,000 25 26. a. Retained earnings 3632 5,634,000 26.a b.Accumulated other comprehensive income (5) B530 17,000 26.b c.Other equity capital components (6) A130 0 26.c 27. a. Total bank equity capital (sum of items 23 through 26.c) 3210 8,373,000 27.a b.Noncontrolling (minority) interests in consolidated subsidiaries 3000 244,000 27.b 28. Total equity capital (sum of items 27.a and 27.b) G105 8,617,000 28 29. Total liabilities and equity capital (sum of items 21 and 28) 3300 47,134,000 29 Memoranda RCFD Number To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2011 6724 N/A M.1 1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank management’s assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. 4 = Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank’s financial statements by external auditors 7 = Compilation of the bank’s financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work RCON MM / DD To be reported with the March Report of Condition. 2. Bank’s fiscal year-end date 8678 N/A M.2 (5) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (6) Includes treasury stock and unearned Employee Stock Ownership Plan shares. RCFD Tril | Bil | Mil | Thou accumulated defined benefit pension and other post retirement plan adjustments.