As filed with the Securities and Exchange Commission on January 18, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TACTILE SYSTEMS TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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41-1801204
(I.R.S. Employer
Identification Number)
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3701 Wayzata Blvd, Suite 300
Minneapolis, MN 55416
(612) 355-5100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Daniel Reuvers
Chief Executive Officer
Tactile Systems Technology, Inc.
3701 Wayzata Blvd, Suite 300
Minneapolis, MN 55416
(612) 355-5100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Jonathan R. Zimmerman
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
(612) 766-7000
Approximate date of commencement of proposed sale to the 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. ☐
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, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer ☐
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Smaller reporting company
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(Do not check if a
smaller reporting company)
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED January 18, 2023
PROSPECTUS
TACTILE SYSTEMS TECHNOLOGY, INC.
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Stock Purchase Contracts
Warrants
Rights
Units
We may offer and sell, from time to time in one or more offerings, up to $150,000,000 in the aggregate of common stock, preferred stock, debt securities, warrants, rights and units, in any combination.
This prospectus provides you with a general description of the securities that may be offered. Each time we offer and sell securities using this prospectus, we will provide a supplement to this prospectus that contains specific information about the offering, as well as the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement describing the method and terms of the offering of such securities.
Investing in our securities involves risks. See “Risk Factors” on page 4 of this prospectus and any similar section contained in the applicable prospectus supplement concerning factors you should consider before investing in our securities.
Our common stock is listed on The NASDAQ Global Market under the symbol “TCMD.” On January 13, 2023, the last reported sale price of our common stock on The NASDAQ Global Market was $13.24 per share.
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 , .
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf” registration process. By using a shelf registration statement, we may sell securities described in this prospectus from time to time and in one or more offerings up to a total dollar amount of $150,000,000. Each time that we offer and sell securities using this prospectus, we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the prospectus supplement. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information.”
We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate as of the date on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, certain market and industry data and obtained from independent market research, industry publications and surveys, governmental agencies and publicly available information. Industry surveys, publications and forecasts generally state that the information contained therein has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We believe the data from such third-party sources to be reliable. However, we have not independently verified any of such data and cannot guarantee its accuracy or completeness. Similarly, internal market research and industry forecasts, which we believe to be reliable based upon our management’s knowledge of the market and the industry, have not been verified by any independent sources. While we are not aware of any misstatements regarding the market or industry data presented herein, our estimates involve risks and uncertainties and are subject to change based on various factors.
References in this prospectus to “Tactile”, “we”, “our”, “us” and “the Company” refer to Tactile Systems Technology, Inc., a Delaware corporation, and its wholly-owned subsidiary.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet site that contains our reports, proxy and other information regarding us and other issuers that file electronically with the SEC, at http://www.sec.gov. Our SEC filings are also available at our website (www.miromatrix.com). However, except for our filings with the SEC that are incorporated by reference into this prospectus, the information on our website is not, and should not be deemed to be, a part of, or incorporated by reference into this prospectus
We also make our SEC filings available, free of charge, on or through our website at www.tactilemedical.com. Please note, however, that information on our website is not, and should not be deemed to be, a part of this prospectus.
Incorporation by Reference
We “incorporate by reference” into this prospectus certain information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. Some information contained in this prospectus updates the information incorporated by reference, and information that we file subsequently with the SEC will automatically update this prospectus as well as our other filings with the SEC. In other words, in the case of a conflict or inconsistency between information set forth in this prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later. We incorporate by reference the documents listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, (i) following the date of the registration statement that contains this prospectus but prior to the effectiveness of such registration statement or (ii) after the date of this prospectus and prior to the time that all the securities offered by this prospectus are sold (in each case, other than any portions of any such documents that are not deemed “filed” under the Exchange Act in accordance with the Exchange Act and applicable SEC rules):
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our Quarterly Reports on Form 10-Q filed with the SEC for the quarters ended March 31, 2022, June 30, 2022 and September 30, 2022, filed with the SEC on May 2, 2022, August 1, 2022 and November 7, 2022, respectively;
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, and on or after the date of this prospectus, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents. You may request a copy of these
filings, other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing, at no cost, by writing to or telephoning us at the following:
Tactile Systems Technology, Inc.
3701 Wayzata Blvd, Suite 300
Minneapolis, MN 55416
Attention: Chief Financial Officer
(612) 355-5100
You should rely only on the information incorporated by reference or presented in this prospectus or the applicable prospectus supplement. Neither we nor any underwriters or agents, have authorized anyone else to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the dates on the front of those documents.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act. The forward-looking statements involve substantial risks and uncertainties. All statements, other than statements related to present facts or current conditions or of historical facts, contained in this prospectus, including statements regarding our strategy, future operations, future financial position, future revenues, and projected costs, prospects, plans and objectives of management, are forward-looking statements. Accordingly, these statements involve estimates, assumptions and uncertainties which could cause actual results to differ materially from those expressed in them. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “ongoing,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” “would,” or the negative of these terms or other comparable terminology are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout our SEC reports, and in particular those factors referenced in the section “Risk Factors” of our most recent Annual Report on Form 10-K and of our subsequent Quarterly Reports on Form 10-Q (including any amendments thereto), which are incorporated by reference into this prospectus, as the same may be updated from time to time by our future filings under the Exchange Act.
Forward-looking statements are not guarantees of future performance and our actual results could differ materially from the results discussed in the forward-looking statements. Factors that could cause actual results to differ materially from those in the forward-looking statements include:
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the impacts of the COVID-19 pandemic on our business, financial condition and results of operations, and our inability to mitigate such impacts;
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the adequacy of our liquidity to pursue our business objectives;
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our ability to obtain reimbursement from third-party payers for our products;
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loss or retirement of key executives, including prior to identifying a successor;
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adverse economic conditions or intense competition;
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loss of a key supplier;
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entry of new competitors and products;
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adverse federal, state and local government regulation;
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technological obsolescence of our products;
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technical problems with our research and products;
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our ability to expand our business through strategic acquisitions;
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our ability to integrate acquisitions and related businesses;
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wage and component price inflation;
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the effects of current and future U.S. and foreign trade policy and tariff actions; and
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the inability to carry out research, development and commercialization plans.
THE COMPANY
Overview
We are a medical technology company that develops and provides innovative medical devices for the treatment of underserved chronic diseases. Our mission is to help people suffering from chronic diseases live better and care for themselves at home. We focus our efforts on advancing the standard of care in treating underserved chronic diseases in the home setting to improve patient outcomes and quality of life and help control rising healthcare expenditures. Our areas of therapeutic focus are (1) vascular disease, with a goal of advancing the standard of care in treating lymphedema and chronic venous insufficiency, (2) oncology, where lymphedema is a common consequence among cancer survivors and (3) providing airway clearance therapy for those suffering from chronic respiratory conditions. We possess a unique, scalable platform to deliver at-home healthcare solutions throughout the United States. This evolving home care delivery model is recognized by policymakers and insurance payers as a key for controlling rising healthcare costs. Our solutions deliver cost-effective, clinically proven, long-term treatment for people with these chronic diseases.
Our current lymphedema products are the Flexitouch and Entre systems and our airway clearance product is the AffloVest. A predecessor to our Flexitouch system received 510(k) clearance from the U.S. Food and Drug Administration (the “FDA”) in July 2002, and we introduced the system to address the many limitations of self-administered home-based manual lymphatic drainage therapy. We began selling our more advanced Flexitouch system after receiving 510(k) clearance from the FDA in October 2006. In September 2016, we received 510(k) clearance from the FDA for the Flexitouch system in treating lymphedema of the head and neck. In June 2017, we announced that we received 510(k) clearance from the FDA for the Flexitouch Plus, the third-generation version of our Flexitouch system. In December 2020, we received 510(k) clearance for two new indications for our Flexitouch Plus system: phlebolymphedema and lipedema. We introduced our Entre system in the United States in February 2013. The Entre system is sold or rented to patients who need a simple pump or who do not yet qualify for insurance reimbursement for an advanced compression device such as our Flexitouch system. On September 8, 2021, we acquired the assets of the AffloVest respiratory therapy product line from International Biophysics Corporation, a privately-held company which developed and manufactures AffloVest. AffloVest is a portable, wearable vest that provides airway clearance to treat patients with chronic respiratory conditions such as bronchiectasis or conditions resulting from neuromuscular disorders.
Our Corporate Information
We were originally incorporated in Minnesota under the name Tactile Systems Technology, Inc. on January 30, 1995. During 2006, we established a merger corporation and subsequently, on July 21, 2006, merged with and into this merger corporation, resulting in us being reincorporated as a Delaware corporation. The resulting corporation assumed the name Tactile Systems Technology, Inc. In September 2013, we began doing business as “Tactile Medical.” Our principal executive offices are located at 3701 Wayzata Blvd, Suite 300, Minneapolis, Minnesota 55416 and our telephone number is (612) 355-5100. Our website is www.tactilemedical.com. Please note, however, that information on our website is not, and should not be deemed to be, a part of this prospectus.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of any securities offered by us for general corporate purposes unless otherwise indicated in the applicable prospectus supplement. General corporate purposes may include expansion of our sales, marketing, reimbursement, clinical, regulatory and product development activities, and for working capital, general and administrative expenses and other general corporate purposes. We may also use a portion of our net proceeds to acquire or invest in complementary products, technologies or businesses, although we have no present commitments to complete any such transaction. The amounts and timing of our expenditures will depend on numerous factors, including the rate of adoption of our devices, the expenses we incur in sales and marketing our devices, the scope of research and development efforts, the timing and success of any clinical trials we may commence in the future, and the timing of regulatory submissions.
Accordingly, our management will have broad discretion over the use of the net proceeds from the sale of any securities offered by us.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our amended and restated certificate of incorporation and amended and restated bylaws, copies of which are incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
Authorized Capital Stock
Our authorized capital stock consists of 300,000,000 shares of common stock, par value $0.001 per share, and 50,000,000 shares of preferred stock, par value $0.001 per share. As of November 4, 2022, we had 20,154,703 shares of common stock outstanding and no shares of preferred stock outstanding.
Common Stock
Voting Rights and Election of Directors
Except as otherwise provided by law or by resolution adopted by the board of directors designating the rights, powers and preferences of any series of preferred stock, holders of our common stock have the exclusive right to vote for the election of directors and for all other purposes. All shares of common stock are entitled to one vote per share and do not have any cumulative voting rights.
An election of directors by our stockholders is determined by a plurality of the votes cast by the stockholders entitled to vote in the election. Except as otherwise required by our amended and restated certificate of incorporation, other matters are decided by the affirmative vote of a majority of the shares of stock represented at a meeting and entitled to vote on the subject matter. Our directors may be removed only for cause and only by the affirmative vote of the holders of at least 75% of the outstanding shares of capital stock then entitled to vote at an election of directors.
Dividends
Subject to the rights, if any, of the holders of any outstanding series of preferred stock, holders of our common stock are entitled to receive dividends out of any of our funds legally available when, as and if declared by the board of directors.
Other Rights and Preferences
Holders of common stock have no preemptive or conversion rights or other subscription rights.
Liquidation
Upon our liquidation, dissolution or winding-up, the holders of common stock would be entitled to share ratably in all assets remaining after payment of all debts and other liabilities and the satisfaction of any liquidation preferences granted to the holders of outstanding shares of preferred stock.
Fully Paid and Non-Assessable
All outstanding shares of common stock are fully paid and non-assessable.
Listing
Our common stock is listed on The NASDAQ Global Market under the symbol “TCMD.” On January 13, 2023, the closing price for our common stock, as reported on The NASDAQ Global Market, was $13.24 per share.
Transfer Agent
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Preferred Stock
Our amended and restated certificate of incorporation provides that we may issue up to 50,000,000 shares of preferred stock in one or more series as may be determined by our board of directors. Our board of directors has broad discretionary authority with respect to the rights of any new series of preferred stock and may establish the following with respect to the shares in each series, without any vote or action of the stockholders:
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the number of shares;
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the designations, powers, preferences and relative participation, optional or other rights, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences; and
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any qualifications, limitations or restrictions.
We believe that the ability of our board of directors to issue one or more series of preferred stock provides us with flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs that may arise. The authorized shares of preferred stock, as well as authorized and unissued shares of common stock, are available for issuance without action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded.
Our board of directors may authorize, without stockholder approval, the issuance of preferred stock with voting and conversion rights that could adversely affect the voting power and other rights of holders of common stock. Although our board of directors has no current intention of doing so, it could issue a series of preferred stock that could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt of our company. Our board of directors could also issue preferred stock having terms that could discourage an acquisition attempt through which an acquiror may be able to change the composition of our board of directors, including a tender offer or other transaction that some, or a majority, of our stockholders might believe to be in their best interests or in which stockholders might receive a premium for their stock over the then-current market price. Any issuance of preferred stock therefore could have the effect of decreasing the market price of our common stock.
Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
Delaware Law
We are subject to Section 203 of the Delaware General Corporation Law. Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (but not the outstanding voting stock owned by the interested stockholder) (a) shares owned by persons who are directors and also officers and (b) shares owned 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
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on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
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any transaction involving the corporation having the effect of increasing the proportionate share of the stock owned by the interested stockholder, subject to exceptions; and
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203 defines an interested stockholder as any entity or person (i) who, together with affiliates and associates, owns 15% or more of a corporation’s voting stock or (ii) who is an affiliate of the corporation and owned, together with affiliates and associates, 15% or more of the corporation’s voting stock within three years prior to the determination of interested stockholder status.
A Delaware corporation may opt out of this provision by express provision in its original certificate of incorporation or by amendment to its certificate of incorporation or bylaws approved by its stockholders. However, we have not opted out of, and do not currently intend to opt out of, this provision. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire us.
Certificate of Incorporation and Bylaws
Provisions of our amended and restated certificate of incorporation and amended and restated bylaws may delay or discourage transactions involving an actual or potential change in control of our company or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock.
Among other things, our amended and restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to 50,000,000 shares of preferred stock, with any rights, preferences and privileges as they may designate, including the right to approve an acquisition or other change in control;
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provide that the authorized number of directors may be changed by resolution of the board of directors;
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provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;
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provide that directors may only be removed for cause by the holders of at least 75% of the voting power of the shares eligible to vote for directors;
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provide that a special meeting of stockholders may be called only by our chief executive officer, the chairman of our board of directors or by our board of directors;
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require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by written consent;
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provide that our by-laws may be amended or repealed by our board of directors or the affirmative vote of the holders of at least a majority of the votes that all our stockholders would be entitled to cast in an election of directors;
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provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide notice in writing in a timely manner, and also specify requirements as to the form and content of a stockholder’s notice; and
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do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election, if they should so choose).
Our amended and restated certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, any or all internal corporate claims, which shall include claims, including claims in the right of our company, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which Title 8 of the Delaware General Corporation Law confers jurisdiction upon the Delaware Court of Chancery, shall be brought solely and exclusively in a state court located within the State of Delaware (or, if no state court located in the State of Delaware has jurisdiction, the federal district court for the District of Delaware). It is possible that a court of law could rule that the choice of forum provision contained in our certificate of incorporation is inapplicable or unenforceable if it is challenged in a proceeding or otherwise.
The amendment of any of the above provisions, except for the provision making it possible for our board of directors to issue preferred stock and the provision prohibiting cumulative voting, would require approval by holders of at least a majority in voting power of the outstanding shares of stock entitled to vote thereon.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of our debt securities, which could be senior debt securities or subordinated debt securities. A prospectus supplement will describe the specific terms of the debt securities offered through that prospectus supplement and any general terms outlined in this section that will not apply to those debt securities.
The senior debt securities will be issued under an indenture, referred to herein as the “senior indenture,” between us and the trustee named in the applicable prospectus supplement. The subordinated debt securities will be issued under an indenture, referred to herein as the “subordinated indenture,” between us and the trustee named in the applicable prospectus supplement.
We have summarized the anticipated material terms and provisions of the senior and subordinated indentures in this section. We have also filed the form of the indentures summarized in this section as exhibits to the registration statement of which this prospectus is a part. You should read the applicable indenture for additional information before you buy any debt securities. The summary that follows includes references to section numbers of the indentures so that you can more easily locate these provisions.
General
The debt securities will be our direct unsecured obligations. Neither of the indentures limits the amount of debt securities that we may issue. Both indentures permit us to issue debt securities from time to time and debt securities issued under an indenture will be issued as part of a series that has been established by us under such indenture. (Section 301)
The senior debt securities will be unsecured and will rank equally with all of our other unsecured unsubordinated debt. The subordinated debt securities will be unsecured and will rank equally with all of our other subordinated debt securities and, together with such other subordinated debt securities, will be subordinated to all of our existing and future Senior Debt (as defined below). See “— Subordination” below.
The debt securities are our unsecured senior or subordinated debt securities, as the case may be, but our assets include equity in our subsidiaries. As a result, our ability to make payments on our debt securities may depend in part on our receipt of dividends, loan payments and other funds from our subsidiaries. In addition, if any of our subsidiaries becomes insolvent, the direct creditors of that subsidiary will have a prior claim on its assets. Our rights and the rights of our creditors, including your rights as an owner of our debt securities, will be subject to that prior claim, unless we are also a direct creditor of that subsidiary. This subordination of creditors of a parent company to prior claims of creditors of its subsidiaries is commonly referred to as structural subordination.
Unless otherwise specified in the applicable prospectus supplement, we may, without the consent of the holders of a series of debt securities, issue additional debt securities of that series having the same ranking and the same interest rate, maturity date and other terms (except for the price to public and issue date) as such debt securities. Any such additional debt securities, together with the initial debt securities, will constitute a single series of debt securities under the applicable indenture. No additional debt securities of a series may be issued if an event of default under the applicable indenture has occurred and is continuing with respect to that series of debt securities.
A prospectus supplement relating to a series of debt securities being offered will include specific terms relating to the offering. (Section 301) These terms will include some or all of the following:
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the title and type of the debt securities;
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any limit on the total principal amount of the debt securities of that series;
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the price at which the debt securities will be issued;
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the date or dates on which the principal of and premium, if any, on the debt securities will be payable;
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the maturity date or dates of the debt securities or the method by which those dates can be determined;
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if the debt securities will bear interest:
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the interest rate on the debt securities or the method by which the interest rate may be determined;
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the date from which interest will accrue;
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the record and interest payment dates for the debt securities; and
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the first interest payment date;
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the place or places where:
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we can make payments on the debt securities;
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the debt securities can be surrendered for registration of transfer or exchange; and
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notices and demands can be given to us relating to the debt securities and under the applicable indenture;
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any optional redemption provisions that would permit us to elect redemption of the debt securities, or the holders of the debt securities to elect repayment of the debt securities, before their final maturity;
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any sinking fund provisions that would obligate us to redeem the debt securities before their final maturity;
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whether the debt securities will be convertible and, if so, the terms and conditions of any such conversion;
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if the debt securities will be issued in bearer form, the terms and provisions contained in the bearer securities and in the applicable indenture specifically relating to the bearer securities;
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whether all or part of the debt securities will not be issued as permanent global securities and the extent to which the description of the book-entry procedures described below under “— Book-Entry, Delivery and Form” will not apply to such global securities — a “global security” is a debt security that we issue in accordance with the applicable indenture to represent all or part of a series of debt securities;
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whether all or part of the debt securities will be issued in whole or in part as temporary global securities and, if so, the depositary for those temporary global securities and any special provisions dealing with the payment of interest and any terms relating to the ability to exchange interests in a temporary global security for interests in a permanent global security or for definitive debt securities;
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whether any additional amounts will be payable;
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the denominations of the debt securities, if other than $1,000 and any integral multiple thereof for registered securities, and $5,000 for bearer securities;
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any portion of the principal amount of debt securities that shall be payable upon acceleration;
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the currency or currencies in which the debt securities will be denominated and payable, if other than U.S. dollars and, if a composite currency, any special provisions relating thereto;
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any circumstances under which the debt securities may be paid in a currency other than the currency in which the debt securities are denominated and the manner in which the exchange rate shall be determined;
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whether the provisions described below under the heading “— Defeasance” will not apply to the debt securities;
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any events of default that will apply to the debt securities in addition to those contained in the applicable indenture;
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any additions or changes to the covenants contained in the applicable indenture and the ability, if any, of the holders to waive our compliance with those additional or changed covenants;
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the identity of the trustee, security registrar and paying agent for the debt securities;
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any material tax implications of the debt securities;
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any special provisions relating to the payment of any additional amounts on the debt securities; and
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any other terms of the debt securities.
When we use the term “holder” in this prospectus with respect to a registered debt security, we mean the person in whose name such debt security is registered in the security register. (Section 101)
Exchange and Transfer
At the option of the holder, any debt securities of a series can be exchanged for other debt securities of that series so long as the other debt securities are denominated in authorized denominations and have the same aggregate principal amount and same terms as the debt securities that were surrendered for exchange, subject to limitations with respect to bearer securities in global form. The debt securities may be presented for registration of transfer, duly endorsed or accompanied by a satisfactory written instrument of transfer, at the office or agency maintained by us for that purpose in any place of payment that we may designate. However, holders of global securities may transfer and exchange global securities only in the manner and to the extent set forth under “— Book-Entry, Delivery and Form” below. There will be no service charge for any registration of transfer or exchange of the debt securities, but we may require holders to pay any tax or other governmental charge payable in connection with a transfer or exchange of the debt securities. (Sections 305, 1002) If the applicable prospectus supplement refers to any office or agency, in addition to the security registrar, initially designated by us where holders can surrender the debt securities for registration of transfer or exchange, we may at any time rescind the designation of any such office or agency or approve a change in the location. However, we will be required to maintain an office or agency in each place of payment for that series. (Section 1002)
We will not be required to:
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issue, register the transfer of or exchange debt securities to be redeemed for a period of 15 calendar days preceding the mailing of the relevant notice of redemption; or
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register the transfer of or exchange any registered debt security selected for redemption, in whole or in part, except the unredeemed or unpaid portion of that registered debt security being redeemed in part. (Section 305)
Interest and Principal Payments
Payments. Holders may present debt securities for payment of principal, premium, if any, and interest, if any, register the transfer of the debt securities and exchange the debt securities at the agency maintained by us for such purpose and identified in the applicable prospectus supplement. We refer to the applicable trustee acting in the capacity of a paying agent for the debt securities as the “paying agent.”
Any money that we pay to the paying agent for the purpose of making payments on the debt securities and that remains unclaimed two years after the payments were due will, at our request, be returned to us and after that time any holder of a debt security can only look to us for the payments on the debt security. (Section 1003)
Recipients of Payments. The paying agent will pay interest to the person in whose name the debt security is registered at the close of business on the applicable record date. However, upon maturity, redemption or repayment, the paying agent will pay any interest due to the paying agent in trust for the benefit of the person entitled to such principal, premium or interest of the debt security. The paying agent will make the payment on the date of maturity, redemption or repayment, whether or not that date is an interest payment date. An “interest payment date” for any debt security means a date on which, under the terms of that debt security, regularly scheduled interest is payable. (Section 307, 1003)
Book-Entry Debt Securities. The paying agent will make payments of principal, premium, if any, and interest, if any, to the account of The Depository Trust Company, referred to herein as “DTC,” or other depositary specified in the applicable prospectus supplement, as holder of book-entry debt securities, by wire transfer of immediately available funds. The “depositary” means the depositary for global securities issued under the applicable indenture and, unless provided otherwise in the applicable prospectus supplement, means
DTC. We expect that the depositary, upon receipt of any payment, will immediately credit its participants’ accounts in amounts proportionate to their respective beneficial interests in the book-entry debt securities as shown on the records of the depositary. We also expect that payments by the depositary’s participants to owners of beneficial interests in the book-entry debt securities will be governed by standing customer instructions and customary practices and will be the responsibility of those participants.
Certificated Debt Securities. Except as indicated below for payments of interest at maturity, redemption or repayment, the paying agent will make payments of interest either:
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by check mailed to the address of the person entitled to payment as shown on the security register; or
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by wire transfer to an account designated by a holder, if the holder has given written notice not later than 10 calendar days prior to the applicable interest payment date. (Section 307)
Redemption and Repayment of Debt Securities
Optional Redemption by Us. If applicable, the prospectus supplement will indicate the terms of our option to redeem the debt securities. We will mail a notice of redemption to each holder which, in the case of global securities, will be the depositary, as holder of the global securities, by first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption, or within the redemption notice period designated in the applicable prospectus supplement, to the address of each holder as that address appears upon the books maintained by the security registrar. (Section 1104)
A partial redemption of the debt securities may be effected by such method as required by us, the registrar or the trustee, and may provide for the selection for redemption of a portion of the principal amount of debt securities held by a holder equal to an authorized denomination. (Section 1107) If we redeem less than all of the debt securities and the debt securities are then held in book-entry form, the redemption will be made in accordance with the depositary’s customary procedures. We have been advised that it is DTC’s practice to determine by the lot the amount of each participant in the debt securities to be redeemed.
Unless we default in the payment of the redemption price, on and after the redemption date interest will cease to accrue on the debt securities called for redemption.
Repayment at Option of Holder. If applicable, the prospectus supplement relating to a series of debt securities will indicate that the holder has the option to have us repay a debt security of that series on a date or dates specified prior to its stated maturity date. Unless otherwise specified in the applicable prospectus supplement, the repayment price will be equal to 100% of the principal amount of the debt security, together with accrued interest to the date of repayment.
Each holder desiring to exercise such holder’s option for repayment shall surrender the debt security to be repaid, together with written notice of the exercise, at least 30 days but not more than 45 days prior to the repayment date, at any of our offices or agencies in a place of payment, setting forth the principal amount of the debt security, the principal amount of the debt security to be repaid, and in the case of partial repayment, shall specify the denomination or denominations of the debt securities of the same series and the portion of the principal amount which is not to be repaid. (Section 1303)
Exercise of the repayment option by the holder of a debt security will be irrevocable. The holder may exercise the repayment option for less than the entire principal amount of the debt security but, in that event, the principal amount of the debt security remaining outstanding after repayment must be an authorized denomination. (Section 1303)
If a debt security is represented by a global security, the depositary or the depositary’s nominee will be the holder of the debt security and therefore will be the only entity that can exercise a right to repayment. In order to ensure that the depositary’s nominee will timely exercise a right to repayment of a particular debt security, the beneficial owner of the debt security must instruct the broker or other direct or indirect participant through which it holds an interest in the debt security to notify the depositary of its desire to exercise a right to repayment. Different firms have different cut-off times for accepting instructions from their customers and, accordingly, each beneficial owner should consult the broker or other direct or indirect participant
through which it holds an interest in a debt security in order to ascertain the cut-off time by which an instruction must be given in order for timely notice to be delivered to the depositary.
We may purchase debt securities at any price in the open market or otherwise. Debt securities so purchased by us may, at our discretion, be held or resold or surrendered to the applicable trustee for cancellation.
Denominations
Unless we state otherwise in the applicable prospectus supplement, the debt securities may be issued in registered form in denominations of $1,000 each and integral multiples of $1,000 in excess thereof, or in bearer form in denominations of $5,000. (Section 302).
Consolidation, Merger or Sale
Each of the indentures permits a consolidation or merger between us and another entity, subject to certain conditions. They also permit the sale or transfer by us of all or substantially all of our property and assets. These transactions are permitted if:
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the resulting or acquiring entity, if other than us, is organized and existing under the laws of a domestic jurisdiction and assumes all of our responsibilities and liabilities under the applicable indenture, including the payment of all amounts due on the debt securities and performance of the covenants in the applicable indenture; and
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immediately after giving effect to the transaction, no event of default under the applicable indenture exists. (Section 801)
If we consolidate or merge with or into any other entity or sell or lease all or substantially all of our assets according to the terms and conditions of the indentures, the resulting or acquiring entity will be substituted for us in the indentures with the same effect as if it had been an original party to the indentures. As a result, such successor entity may exercise our rights and powers under the indentures, in our name and, except in the case of a lease of all or substantially all of our properties, we will be released from all our liabilities and obligations under the indentures and under the debt securities. (Section 802)
Modification and Waiver
Under each of the indentures, certain of our rights and obligations and certain of the rights of holders of the debt securities may be modified or amended with the consent of the holders of at least a majority of the aggregate principal amount of the outstanding debt securities of all series of debt securities affected by the modification or amendment, acting as one class. However, the following modifications and amendments will not be effective against any holder without its consent:
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a change in the stated maturity date of any payment of principal or interest;
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a reduction in payments due on the debt securities;
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a change in the place of payment or currency in which any payment on the debt securities is payable;
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a limitation of a holder’s right to sue us for the enforcement of payments due on the debt securities;
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a reduction in the percentage of outstanding debt securities required to consent to a modification or amendment of the applicable indenture or required to consent to a waiver of compliance with certain provisions of the applicable indenture or certain defaults under the applicable indenture;
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a reduction in the requirements contained in the applicable indenture for quorum or voting;
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a limitation of a holder’s right, if any, to repayment of debt securities at the holder’s option; and
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a modification of any of the foregoing requirements contained in the applicable indenture. (Section 902)
Under each of the indentures, the holders of at least a majority of the aggregate principal amount of the outstanding debt securities of all series of debt securities affected by a particular covenant or condition,
acting as one class, may, on behalf of all holders of such series of debt securities, waive compliance by us with any covenant or condition contained in the applicable indenture unless we specify that such covenant or condition cannot be so waived at the time we establish the series.
In addition, under each of the indentures, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series of debt securities may, on behalf of all holders of that series, waive any past default under the applicable indenture, except:
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a default in the payment of the principal of or any premium or interest on any debt securities of that series; or
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a default under any provision of the applicable indenture which itself cannot be modified or amended without the consent of the holders of each outstanding debt security of that series. (Section 513)
Events of Default
Unless otherwise specified in the applicable prospectus supplement, an “event of default,” when used in the senior indenture or the subordinated indenture with respect to any series of debt securities issued thereunder, means any of the following:
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failure to pay interest on any debt security of that series for 30 days after the payment is due;
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failure to pay the principal of or any premium on any debt security of that series when due;
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failure to deposit any sinking fund payment on debt securities of that series when due;
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failure to perform any other covenant in the applicable indenture that applies to debt securities of that series for 90 days after we have received written notice of the failure to perform in the manner specified in the applicable indenture;
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certain events in bankruptcy, insolvency or reorganization; or
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any other event of default that may be specified for the debt securities of that series when that series is created. (Section 501)
If an event of default for any series of debt securities occurs and continues, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the series may declare the entire principal of all the debt securities of that series to be due and payable immediately. If such a declaration occurs, the holders of a majority of the aggregate principal amount of the outstanding debt securities of that series can, subject to conditions, rescind the declaration. (Sections 502, 513)
Each of the indentures requires us to file an officers’ certificate with the applicable trustee each year that states, to the knowledge of the certifying officers, whether or not any defaults exist under the terms of the applicable indenture. (Section 1005) The applicable trustee may withhold notice to the holders of debt securities of any default, except defaults in the payment of principal, premium, interest or any sinking fund installment, if it considers the withholding of notice to be in the interest of the holders. For purposes of this paragraph, “default” means any event which is, or after notice or lapse of time or both would become, an event of default under the applicable indenture with respect to the debt securities of the applicable series. (Section 602)
Other than its duties in the case of a default, a trustee is not obligated to exercise any of its rights or powers under the applicable indenture at the request, order or direction of any holders, unless the holders offer that trustee security or indemnity satisfactory to the trustee. (Sections 601, 603) If satisfactory indemnification is provided, then, subject to other rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series may, with respect to the debt securities of that series, direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or
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exercising any trust or power conferred upon the trustee. (Sections 512, 601)
The holder of a debt security of any series will have the right to begin any proceeding with respect to the applicable indenture or for any remedy only if:
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the holder has previously given the trustee written notice of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request of, and offered reasonable indemnification to, the trustee to begin such proceeding;
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the trustee has not started such proceeding within 60 days after receiving the request; and
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the trustee has not received directions inconsistent with such request from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series during those 60 days. (Section 507)
However, the holder of any debt security will have an absolute right to receive payment of principal of and any premium and interest on the debt security when due and to institute suit to enforce this payment, subject to limitations with respect to subordinated debt securities.
Defeasance
Defeasance and Discharge. At the time that we establish a series of debt securities under the applicable indenture, we can provide that the debt securities of that series are subject to the defeasance and discharge provisions of that indenture. Unless we specify otherwise in the applicable prospectus supplement, the debt securities offered thereby will be subject to the defeasance and discharge provisions of the applicable indenture, and we will be discharged from our obligations on the debt securities of that series if:
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we deposit with the applicable trustee, in trust, sufficient money or, if the debt securities of that series are denominated and payable in U.S. dollars only, Eligible Instruments, to pay the principal, any interest, any premium and any other sums due on the debt securities of that series, such as sinking fund payments, on the dates the payments are due under the applicable indenture and the terms of the debt securities;
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we deliver to the applicable trustee an opinion of counsel that states that the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if no deposit, defeasance and discharge had been made; and
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if the debt securities of that series are listed on any domestic or foreign securities exchange, the debt securities will not be delisted as a result of the deposit. (Section 403)
When we use the term “Eligible Instruments” in this section, we mean monetary assets, money market instruments and securities that are payable in U.S. dollars only and essentially risk free as to collection of principal and interest, including:
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monetary assets, money market instruments and securities that are payable in U.S. dollars only and essentially risk free as to collection of principal and interest; or
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direct obligations of the United States for the payment of which its full faith and credit is pledged , or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States if the timely payment of the obligation is unconditionally guaranteed as a full faith and credit obligation by the United States. (Section 101)
In the event that we deposit money and/or Eligible Instruments in trust and discharge our obligations under a series of debt securities as described above, then:
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the applicable indenture, including, in the case of subordinated debt securities, the subordination provisions contained in the subordinated indenture, will no longer apply to the debt securities of that series; however, certain obligations to compensate, reimburse and indemnify the trustee, to register the transfer and exchange of debt securities, to replace lost, stolen or mutilated debt securities, to
maintain paying agencies and the trust funds and to pay additional amounts, if any, required as a result of U.S. withholding taxes imposed on payments to non-U.S. persons will continue to apply; and
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holders of debt securities of that series can only look to the trust fund for payment of principal, any premium and any interest on the debt securities of that series. (Section 403)
Defeasance of Certain Covenants and Certain Events of Default. At the time that we establish a series of debt securities under the applicable indenture, we can provide that the debt securities of that series are subject to the covenant defeasance provisions of that indenture. Unless we specify otherwise in the applicable prospectus supplement, the debt securities offered thereby will be subject to the covenant defeasance provisions of the applicable indenture, and if we make the deposit and deliver the opinion of counsel described above in this section under the heading “— Defeasance and Discharge,” we will not have to comply with any covenant we designate when we establish the series of debt securities. In the event of a covenant defeasance, our obligations under the applicable indenture and the debt securities, other than with respect to the covenants specifically designated upon establishing the debt securities, will remain in effect. (Section 1501)
If we exercise our option not to comply with certain covenants as described above and the debt securities of the series become immediately due and payable because an event of default has occurred, other than as a result of an event of default specifically relating to any of such covenants, the amount of money and/or Eligible Instruments on deposit with the applicable trustee will be sufficient to pay the principal, any interest, any premium and any other sums, due on the debt securities of that series, such as sinking fund payments, on the date the payments are due under the applicable indenture and the terms of the debt securities, but may not be sufficient to pay amounts due at the time of acceleration. However, we would remain liable for the balance of the payments. (Section 1501)
Subordination
The subordinated debt securities will be subordinate to all of our existing and future Senior Debt, as defined below. Our “Senior Debt” includes the senior debt securities and means the principal of, premium, if any, and interest on, rent under, and any other amounts payable on or in or in respect of any of our indebtedness (including, without limitation, any obligations in respect of such indebtedness and any interest accruing after the filing of a petition by or against us under any bankruptcy law, whether or not allowed as a claim after such filing in any proceeding under such bankruptcy law), whether outstanding on the date of the senior indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by us (including all deferrals, renewals, extensions, refinancings or refundings of, or amendments, modifications or supplements to the foregoing). However, Senior Debt does not include:
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any liability for federal, state, local or other taxes owed or owing by us;
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our indebtedness to any of our subsidiaries;
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our trade payables and accrued expenses (including, without limitation, accrued compensation) for goods, services or materials purchased or provided in the ordinary course of business; and
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any particular indebtedness in which the instrument creating or evidencing the same expressly provides that such indebtedness shall not be senior in right of payment to, or is pari passu with, or is subordinated or junior to, the subordinated debt securities. (Section 101 of the subordinated indenture)
If certain events in bankruptcy, insolvency or reorganization occur, we will first pay all Senior Debt, including any interest accrued after the events occur, in full before we make any payment or distribution, whether in cash, securities or other property, on account of the principal of or interest on the subordinated debt securities. In such an event, we will pay or deliver directly to the holders of Senior Debt any payment or distribution otherwise payable or deliverable to holders of the subordinated debt securities. We will make the payments to the holders of Senior Debt according to priorities existing among those holders until we have paid all Senior Debt, including accrued interest, in full. Notwithstanding the subordination provisions discussed in this paragraph, we may make payments or distributions on the subordinated debt securities so long as:
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the payments or distributions consist of securities issued by us or another company in connection with a plan of dissolution, reorganization, readjustment or winding up; and
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payment on those securities is subordinate to outstanding Senior Debt and any securities issued with respect to Senior Debt under such plan of dissolution, reorganization, readjustment or winding up at least to the same extent provided in the subordination provisions of the subordinated debt securities. (Section 1601 of the subordinated indenture)
If such events in bankruptcy, insolvency or reorganization occur, after we have paid in full all amounts owed on Senior Debt:
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the holders of subordinated debt securities,
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together with the holders of any of our other obligations ranking equal with those subordinated debt securities,
will be entitled to receive from our remaining assets any principal, premium or interest due at that time on the subordinated debt securities and such other obligations before we make any payment or other distribution on account of any of our capital stock or obligations ranking junior to those subordinated debt securities.
If we violate the subordinated indenture by making a payment or distribution to holders of the subordinated debt securities before we have paid all of the Senior Debt in full, then such holders of the subordinated debt securities will be deemed to have received the payments or distributions in trust for the benefit of, and will have to pay or transfer the payments or distributions to, the holders of the Senior Debt outstanding at the time. The payment or transfer to the holders of the Senior Debt will be made according to the priorities existing among those holders. Notwithstanding the subordination provisions discussed in this paragraph, holders of subordinated debt securities will not be required to pay, or transfer payments or distributions to, holders of Senior Debt so long as:
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the payments or distributions consist of securities issued by us or another company in connection with a plan of reorganization or readjustment; and
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payment on those securities is subordinated to outstanding Senior Debt and any securities issued with respect to Senior Debt under such plan of reorganization or readjustment at least to the same extent provided in the subordination provisions of those subordinated debt securities. (Section 1601 of the subordinated indenture)
Because of the subordination, if we become insolvent, holders of Senior Debt may receive more, ratably, and holders of the subordinated debt securities having a claim pursuant to those securities may receive less, ratably, than our other creditors.
We may modify or amend the subordinated indenture as provided under “— Modification and Waiver” above. However, the modification or amendment may not, without the consent of the holders of all Senior Debt outstanding, modify any of the provisions of the subordinated indenture relating to the subordination of the subordinated debt securities in a manner that would adversely affect the holders of Senior Debt. (Section 902 of the subordinated indenture)
Payment of Additional Amounts
Unless we specify otherwise in the applicable prospectus supplement, we will not pay any additional amounts on the debt securities offered thereby to compensate any beneficial owner for any United States tax withheld from payments on such debt securities.
Book-Entry, Delivery and Form
We have obtained the information in this section concerning DTC, Clearstream Banking S.A., or “Clearstream,” and Euroclear Bank S.A./N.V., as operator of the Euroclear System, or “Euroclear,” and the book-entry system and procedures from sources that we believe to be reliable, but we take no responsibility for the accuracy of this information. This information could change at any time. In addition, we have no control over DTC, Clearstream or Euroclear, or any of their participants, and therefore we take no responsibility for their activities.
Unless otherwise specified in the applicable prospectus supplement, the debt securities will be issued as fully registered global securities that will be deposited with, or on behalf of, DTC and registered, at the request of DTC, in the name of Cede & Co. Beneficial interests in the global securities will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct or indirect participants in DTC. The direct and indirect participants will remain responsible for keeping account of their holdings on behalf of their customers. Investors may elect to hold their interests in the global securities through either DTC (in the United States) or (in Europe) through Clearstream or through Euroclear. Investors may hold their interests in the global securities directly if they are participants of such systems, or indirectly through organizations that are participants in these systems. Interests held through Clearstream and Euroclear will be recorded on DTC’s books as being held by the U.S. Depositary for each of Clearstream and Euroclear (the “U.S. Depositaries”), which U.S. Depositaries will, in turn, hold interests on behalf of their participants’ customers’ securities accounts. Unless otherwise specified in the applicable prospectus supplement, beneficial interests in the global securities will be held in denominations of $1,000 and multiples of $1,000 in excess thereof. Except as set forth below, the global securities may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
Debt securities represented by a global security can be exchanged for definitive securities in registered form only if:
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DTC notifies us that it is unwilling or unable to continue as depositary for that global security and we do not appoint a qualified successor depositary within 90 days after receiving that notice;
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at any time DTC ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depositary within 90 days after becoming aware that DTC has ceased to be registered as a clearing agency;
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we in our sole discretion determine that such global security will be exchangeable for definitive securities in registered form or elect to terminate the book-entry system through DTC and notify the applicable trustee of our decision; or
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an event of default with respect to the debt securities represented by that global security has occurred and is continuing.
A global security that can be exchanged as described in the preceding sentence will be exchanged for definitive securities issued in authorized denominations in registered form for the same aggregate amount. The definitive securities will be registered in the names of the owners of the beneficial interests in the global security as directed by DTC.
We will make principal and interest payments on all debt securities represented by a global security to the paying agent which in turn will make payment to DTC or its nominee, as the case may be, as the sole registered owner and the sole holder of the debt securities represented by a global security for all purposes under the applicable indenture. Accordingly, we, the applicable trustee and any paying agent will have no responsibility or liability for:
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any aspect of DTC’s records relating to, or payments made on account of, beneficial ownership interests in a debt security represented by a global security;
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any other aspect of the relationship between DTC and its participants or the relationship between those participants and the owners of beneficial interests in a global security held through those participants; or
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the maintenance, supervision or review of any of DTC’s records relating to those beneficial ownership interests.
We understand that DTC’s current practice is to credit direct participants’ accounts on each payment date with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global security as shown on DTC’s records, upon DTC’s receipt of funds and corresponding detail information. The underwriters or agents for the debt securities represented by a global security will initially designate the accounts to be credited. Payments by participants to owners of beneficial interests in a global security will be governed by standing instructions and customary practices, as is the case with securities held for customer accounts registered in “street name,” and will be the sole responsibility of those
participants, and not of DTC or its nominee, the trustee, any agent of ours, or us, subject to any statutory or regulatory requirements. Book-entry notes may be more difficult to pledge because of the lack of a physical note.
DTC
So long as DTC or its nominee is the registered owner of a global security, DTC or its nominee, as the case may be, will be considered the sole owner and holder of the debt securities represented by that global security for all purposes of the debt securities. Owners of beneficial interests in the debt securities will not be entitled to have debt securities registered in their names, will not receive or be entitled to receive physical delivery of the debt securities in definitive form and will not be considered owners or holders of debt securities under the applicable indenture. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of DTC and, if that person is not a DTC participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder of debt securities. The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of the securities in certificated form. These laws may impair the ability to transfer beneficial interests in a global security. Beneficial owners may experience delays in receiving distributions on their debt securities since distributions will initially be made to DTC and must then be transferred through the chain of intermediaries to the beneficial owner’s account.
We understand that, under existing industry practices, if we request holders to take any action, or if an owner of a beneficial interest in a global security desires to take any action which a holder is entitled to take under the applicable indenture, then DTC would authorize the participants holding the relevant beneficial interests to take that action and those participants would authorize the beneficial owners owning through such participants to take that action or would otherwise act upon the instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers of those ownership interests will be effected only through, records maintained by DTC and its participants for that global security. The conveyance of notices and other communications by DTC to its participants and by its participants to owners of beneficial interests in the debt securities will be governed by arrangements among them, subject to any statutory or regulatory requirements in effect.
We understand that DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered under the Exchange Act. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries.
DTC holds the securities of its participants and facilitates the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of its participants. The electronic book-entry system eliminates the need for physical certificates. DTC’s participants include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and certain other organizations, some of which, and/or their representatives, own DTCC. Banks, brokers, dealers, trust companies and others that clear through or maintain a custodial relationship with a participant, either directly or indirectly, also have access to DTC’s book-entry system. The rules applicable to DTC and its participants are on file with the SEC.
The above information with respect to DTC has been provided for informational purposes only and is not intended to serve as a representation, warranty or contract modification of any kind.
Clearstream
We understand that Clearstream was incorporated under the laws of Luxembourg as an international clearing system. Clearstream holds securities for its participating organizations, or “Clearstream Participants,” and facilitates the clearance and settlement of securities transactions between Clearstream Participants
through electronic book-entry changes in accounts of Clearstream Participants, thereby eliminating the need for physical movement of certificates. Clearstream provides to Clearstream Participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic securities markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier). Clearstream Participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Clearstream’s U.S. Participants are limited to securities brokers and dealers and banks. Indirect access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Clearstream Participant either directly or indirectly.
Distributions with respect to debt securities held beneficially through Clearstream will be credited to cash accounts of Clearstream Participants in accordance with its rules and procedures, to the extent received by the U.S. Depositary for Clearstream.
Euroclear
We understand that Euroclear was created in 1968 to hold securities for participants of Euroclear, or “Euroclear Participants,” and to clear and settle transactions between Euroclear Participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear performs various other services, including securities lending and borrowing and interacts with domestic markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V., or the “Euroclear Operator,” under contract with Euroclear plc, a U.K. corporation. All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not Euroclear plc. Euroclear plc establishes policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants include banks, including central banks, securities brokers and dealers and other professional financial intermediaries. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear Participant, either directly or indirectly. Euroclear is an indirect participant in DTC.
The Euroclear Operator is a Belgian bank. As such it is regulated by the Belgian Banking and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law, which we will refer to herein as the “Terms and Conditions.” The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on behalf of Euroclear Participants, and has no record of or relationship with persons holding through Euroclear Participants.
Distributions with respect to debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear Participants in accordance with the Terms and Conditions, to the extent received by the Euroclear Operator.
We further understand that investors that acquire, hold and transfer interests in the debt securities by book-entry through accounts with the Euroclear Operator or any other securities intermediary are subject to the laws and contractual provisions governing their relationship with their intermediary, as well as the laws and contractual provisions governing the relationship between such an intermediary and each other intermediary, if any, standing between themselves and the global securities.
Global Clearance and Settlement Procedures
Unless otherwise specified in the applicable prospectus supplement, initial settlement for the debt securities will be made in immediately available funds. Secondary market trading between DTC participants
will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds using DTC’s Same-Day Funds Settlement System. Secondary market trading between Clearstream Participants and/or Euroclear Participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream and Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream Participants or Euroclear Participants, on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. Depositary; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. Depositary to take action to effect final settlement on its behalf by delivering or receiving debt securities through DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream Participants and Euroclear Participants may not deliver instructions directly to their respective U.S. Depositaries.
Because of time-zone differences, credits of debt securities received through Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in such debt securities settled during such processing will be reported to the relevant Euroclear Participants or Clearstream Participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of debt securities by or through a Clearstream Participant or a Euroclear Participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
If the debt securities are cleared only through Euroclear and Clearstream (and not DTC), you will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices, and other transactions involving any securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers, and other institutions are open for business in the United States. In addition, because of time-zone differences, U.S. investors who hold their interests in the securities through these systems and wish to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, on a particular day may find that the transaction will not be effected until the next business day in Luxembourg or Brussels, as applicable. Thus, U.S. investors who wish to exercise rights that expire on a particular day may need to act before the expiration date.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of debt securities among participants of DTC, Clearstream and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be modified or discontinued at any time. Neither we nor any paying agent will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective direct or indirect participants of their obligations under the rules and procedures governing their operations.
Conversion and Exchange
If any offered debt securities are convertible at the option of the holders or exchangeable at our option, the prospectus supplement relating to those debt securities will include the terms and conditions governing any conversions and exchanges.
Governing Law
The indentures are, and the debt securities will be, governed by and will be construed in accordance with New York law.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
We may issue stock purchase contracts, including contracts obligating holders to purchase from us and contracts obligating us to sell to the holders, a specified number of shares of common stock or other securities at a future date or dates. The price per share of the securities and the number of shares of the securities may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and warrants or other securities or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the securities under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase contracts or vice versa, and such payments may be unsecured or prefunded on some basis. They may also require holders to secure their obligations thereunder in a specified manner and in certain circumstances we may deliver newly issued prepaid stock purchase contracts, or prepaid securities, upon release to a holder of any collateral securing such holder’s obligations under the original stock purchase contract.
The stock purchase contracts, and, if applicable, collateral or depositary arrangements will be filed with the SEC in connection with the offering of stock purchase contracts. The prospectus supplement and any incorporated documents relating to any stock purchase contracts that we offer will include specific terms relating to the offering, including, among other matters:
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If applicable, a discussion of material U.S. federal income tax considerations; and
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Any other information we think important about the stock purchase contracts.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue warrants independently or together with other securities, and the warrants 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 the investors or a warrant agent. The following summary of material provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise;
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the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock;
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the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property;
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the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable;
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the terms of any rights to redeem or call the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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a discussion of certain United States federal income tax consequences applicable to the warrants; and
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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the warrants.
Holders of equity warrants will not be entitled to:
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vote, consent or receive dividends;
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receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or
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exercise any rights as stockholders of Tactile.
Each warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce covenants in the applicable indenture.
Until any warrants to purchase common stock or preferred stock are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock or preferred stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock, if any.
DESCRIPTION OF RIGHTS
We may issue rights to purchase our common stock. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us and one or more banks, trust companies or other financial institutions, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement and any incorporated documents relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining the security holders entitled to the rights distribution;
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the aggregate number of rights issued and the aggregate number of shares of common stock purchasable upon exercise of the rights;
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the exercise price;
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the conditions to completion of the rights offering;
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the date on which the right to exercise the rights will commence and the date on which the rights will expire; and
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a discussion of certain United States federal income tax consequences applicable to the rights offering.
Each right would entitle the holder of the rights to purchase for cash shares of common stock at the exercise price set forth 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 become void.
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 our security holders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
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:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain United States federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
PLAN OF DISTRIBUTION
We may sell the securities from time to time in any one or more of the following ways:
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directly to one or more purchasers, including through a specific bidding, auction or other process;
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to purchasers through agents;
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directly to agents;
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to or through brokers or dealers;
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to the public through underwriting syndicates led by one or more managing underwriters;
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in privately negotiated transactions;
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in block trades;
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to one or more underwriters acting alone for resale to investors or to the public; and
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through a combination of any these methods or any other method permitted by law.
The securities may be distributed from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices;
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at varying prices determined at the time of sale; or
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at negotiated prices.
Any of the prices may represent a discount from the then prevailing market prices.
Each time that we sell securities using this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds to us.
Offers to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to
indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common stock will be listed on The NASDAQ Global Market, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may have relationships with, engage in transactions with or perform services for us or one or more of our affiliates in the ordinary course of business for which they receive compensation.
We, the underwriters, dealers or agents may facilitate the marketing of an offering online directly or through one of their affiliates. In those cases, prospective investors may view offering terms and a prospectus online and, depending upon the particular underwriter, dealer or agent, place orders online or through their financial advisors.
LEGAL MATTERS
Faegre Drinker Biddle & Reath LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of us. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel named in the applicable prospectus supplement.
EXPERTS
The audited financial statements and management’s assessment of the effectiveness of internal control over financial reporting incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
TACTILE SYSTEMS TECHNOLOGY, INC.
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Stock Purchase Contracts
Warrants
Rights
Units
PROSPECTUS
,
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.
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SEC registration fee
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$ |
16,530.00 |
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Fees and expenses of the trustee
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*
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Printing expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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FINRA filing fees
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*
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The NASDAQ Global Market supplemental listing fee
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*
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Miscellaneous
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*
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Total
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$ |
*
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*
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
We are a corporation organized under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to an action by reason of the fact that he or she was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful, except that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation. Our amended and restated bylaws provide that we will indemnify and advance expenses to our directors and officers (and may choose to indemnify and advance expenses to other employees and other agents) to the fullest extent permitted by law; provided, however, that if we enter into an indemnification agreement with such directors or officers, such agreement controls.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
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breach of a director’s duty of loyalty to the corporation or its stockholders;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or unlawful stock repurchases or redemption of shares; or
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transaction from which the director derived an improper personal benefit.
Our amended and restated certificate of incorporation limits the personal liability of our directors to the fullest extent permitted by law.
These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies such as injunctive relief or rescission.
Section 145(g) of the Delaware General Corporation Law permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation. Our amended and restated bylaws permit us to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her actions in connection with their services to us, regardless of whether the Delaware General Corporation Law permits indemnification. We have obtained a directors’ and officers’ liability insurance policy.
We have entered into separate indemnification agreements with our directors and officers, in addition to the indemnification provisions set forth in our amended and restated certificate of incorporation and amended and restated bylaws. These agreements, among other things, require us to indemnify our directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her services as one of our directors or officers, including services provided to any subsidiary or any other company or enterprise to which the person provides services at our request.
Item 16. Exhibits
A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein 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 a 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;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the 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 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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 Minneapolis, Minnesota, on this 18th day of January, 2023.
TACTILE SYSTEMS TECHNOLOGY, INC.
By:
/s/ Daniel Reuvers
Daniel Reuvers
Chief Executive Officer
Each person whose signature appears below constitutes and appoints Daniel Reuvers and Brent A. Moen, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Daniel Reuvers
Daniel Reuvers
|
|
|
Chief Executive Officer and Director (Principal Executive Officer)
|
|
|
January 18, 2023
|
|
| |
/s/ Brent A. Moen
Brent A. Moen
|
|
|
Chief Financial Officer (Principal Financial and Accounting Officer)
|
|
|
January 18, 2023
|
|
| |
/s/ William W. Burke
William W. Burke
|
|
|
Chairman of the Board of Directors
|
|
|
January 18, 2023
|
|
| |
/s/ Valerie L. Asbury
Valerie L. Asbury
|
|
|
Director
|
|
|
January 18, 2023
|
|
| |
/s/ Sheri L. Dodd
Sheri L. Dodd
|
|
|
Director
|
|
|
January 18, 2023
|
|
| |
/s/ Raymond O. Huggenberger
Raymond O. Huggenberger
|
|
|
Director
|
|
|
January 18, 2023
|
|
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Deepti Jain
Deepti Jain
|
|
|
Director
|
|
|
January 18, 2023
|
|
| |
/s/ D. Brent Shafer
D. Brent Shafer
|
|
|
Director
|
|
|
January 18, 2023
|
|
| |
/s/ Carmen B. Volkart
Carmen B. Volkart
|
|
|
Director
|
|
|
January 18, 2023
|
|
EXHIBIT INDEX
|
Exhibit No.
|
|
|
Description
|
|
|
1.1*
|
|
|
Form of Underwriting Agreement
|
|
|
3.1
|
|
|
Amended and Restated Certificate of Incorporation, as amended through May 9, 2019 (Incorporated by reference to Exhibit 3.2 of the Company’s Current Report on Form 8-K filed on May 9, 2019)
|
|
|
3.2
|
|
|
|
|
|
4.1
|
|
|
Specimen certificate representing shares of common stock (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1, as amended, filed on May 6, 2016 (File No. 333-209115))
|
|
|
4.2*
|
|
|
Form of Preferred Stock Certificate
|
|
|
4.3
|
|
|
|
|
|
4.4
|
|
|
|
|
|
4.5*
|
|
|
Form of Warrant Agreement
|
|
|
4.6*
|
|
|
Form of Warrant
|
|
|
4.7*
|
|
|
Form of Rights Agent Agreement (including form of Rights Certificate)
|
|
|
4.8*
|
|
|
Form of Unit Agreement (including form of Unit Certificate)
|
|
|
4.9*
|
|
|
Form of Stock Purchase Contract (including form of Stock Purchase Contract Certificate)
|
|
|
5.1
|
|
|
|
|
|
23.1
|
|
|
|
|
|
23.2
|
|
|
|
|
|
24.1
|
|
|
|
|
|
25.1*
|
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee, as trustee under the Senior Indenture filed as Exhibit 4.3 above
|
|
|
25.2*
|
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee, as trustee under the Subordinated Indenture filed as Exhibit 4.4 above
|
|
|
107
|
|
|
|
|
*
To be filed by amendment or as an exhibit to a document incorporated by reference into this registration statement at a later date, in connection with a specific offering
Exhibit 4.3
TACTILE SYSTEMS TECHNOLOGY, INC.
TO
[ ]
Trustee
INDENTURE
Dated as of [ ]
Senior Debt Securities
Tactile Systems Technology, Inc.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of [ ]
| Trust
Indenture Act Section |
|
Indenture
Section |
| §310(a)(1) |
|
609 |
| (a)(2) |
|
609 |
| (a)(3) |
|
Not
Applicable |
| (a)(4) |
|
Not
Applicable |
| (a)(5) |
|
609 |
| (b) |
|
608,
610 |
| §311(a) |
|
613 |
| (b) |
|
613 |
| §312(a) |
|
701,
702(a) |
| (b) |
|
702(b) |
| (c) |
|
702(c) |
| §313(a) |
|
703(a) |
| (b) |
|
703(a) |
| (c) |
|
703(a) |
| (d) |
|
703(b) |
| §314(a) |
|
704,
1005 |
| (b) |
|
Not
Applicable |
| (c)(1) |
|
102 |
| (c)(2) |
|
102 |
| (c)(3) |
|
Not
Applicable |
| (d) |
|
Not
Applicable |
| (e) |
|
102 |
| §315(a) |
|
601 |
| (b) |
|
602 |
| (c) |
|
601 |
| (d) |
|
601 |
| (e) |
|
514 |
| §316(a) |
|
101 |
| (a)(1)(A) |
|
104(h),
502, 512 |
| (a)(1)(B) |
|
104(h),
513 |
| (a)(2) |
|
Not
Applicable |
| (b) |
|
508 |
| (c) |
|
104(h) |
| §317(a)(1) |
|
503 |
| (a)(2) |
|
504 |
| (b) |
|
1003 |
| §318(a) |
|
107 |
| (c) |
|
107 |
Note: This reconciliation and tie shall not,
for any purpose, be deemed to be part of the Indenture.
Table
of Contents
Page
| Article One |
Definitions
and Other Provisions of General Application |
1 |
| Section 101. |
Definitions |
1 |
| |
Act |
2 |
| |
Affiliate |
2 |
| |
Authorized
Newspaper |
2 |
| |
Bearer
Security |
2 |
| |
Board
of Directors |
2 |
| |
Board
Resolution |
2 |
| |
Business
Day |
2 |
| |
Clearstream |
2 |
| |
Commission |
2 |
| |
Company |
3 |
| |
Company
Request and Company Order |
3 |
| |
Corporate
Trust Office |
3 |
| |
corporation |
3 |
| |
coupon |
3 |
| |
Debt
Securities |
3 |
| |
Defaulted
Interest |
3 |
| |
Depositary |
3 |
| |
Designated
Currency |
3 |
| |
Dollar
or $ |
3 |
| |
Eligible
Instruments |
3 |
| |
Euro |
4 |
| |
Euroclear |
4 |
| |
Event
of Default |
4 |
| |
Exchange
Act |
4 |
| |
Exchange
Rate |
4 |
| |
Exchange
Rate Agent |
4 |
| |
Exchange
Rate Officer’s Certificate |
4 |
| |
Foreign
Currency |
4 |
| |
Global
Exchange Agent |
4 |
| |
Global
Exchange Date |
4 |
| |
Global
Security |
4 |
| |
Holder |
4 |
| |
Indenture |
4 |
| |
interest |
4 |
| |
Interest
Payment Date |
5 |
| |
Maturity |
5 |
| |
Officers’
Certificate |
5 |
| |
Opinion
of Counsel |
5 |
| |
Original
Issue Discount Security |
5 |
| |
|
|
|
Table
of Contents
(continued)
Page
| |
Outstanding |
5 |
| |
Paying
Agent |
6 |
| |
Person |
6 |
| |
Place
of Payment |
6 |
| |
Predecessor
Security |
6 |
| |
Redemption
Date |
6 |
| |
Redemption
Price |
6 |
| |
Registered
Security |
6 |
| |
Regular
Record Date |
6 |
| |
Remarketing
Entity |
6 |
| |
Repayment
Date |
6 |
| |
Repayment
Price |
6 |
| |
Responsible
Officer |
7 |
| |
Security
Register |
7 |
| |
Special
Record Date |
7 |
| |
Stated
Maturity |
7 |
| |
Trust
Indenture Act |
7 |
| |
Trustee |
7 |
| |
United
States |
7 |
| |
United
States Alien |
7 |
| |
U.S.
Government Obligations |
7 |
| Section 102. |
Compliance
Certificates and Opinions |
8 |
| Section 103. |
Form of
Documents Delivered to Trustee |
8 |
| Section 104. |
Acts
of Holders |
9 |
| Section 105. |
Notices, etc.,
to Trustee and Company |
10 |
| Section 106. |
Notice
to Holders; Waiver |
11 |
| Section 107. |
Conflict
with Trust Indenture Act |
12 |
| Section 108. |
Effect
of Headings and Table of Contents |
12 |
| Section 109. |
Successors
and Assigns |
12 |
| Section 110. |
Separability
Clause |
12 |
| Section 111. |
Benefits
of Indenture |
13 |
| Section 112. |
Governing
Law |
13 |
| Section 113. |
Legal
Holidays |
13 |
| Section 114. |
Counterparts |
13 |
| Section 115. |
Exemption
from Individual Liability |
13 |
| Article Two |
Debt
Security Forms |
14 |
| Section 201. |
Forms
Generally |
14 |
| Section 202. |
Form of
Trustee’s Certificate of Authentication |
14 |
| Section 203. |
Debt
Securities in Global Form |
14 |
| Article Three |
The
Debt Securities |
15 |
| Section 301. |
Amount
Unlimited; Issuance in Series |
15 |
| |
|
|
|
Table
of Contents
(continued)
Page
| Section 302. |
Denominations |
18 |
| Section 303. |
Execution,
Authentication, Delivery and Dating |
18 |
| Section 304. |
Temporary
Debt Securities |
21 |
| Section 305. |
Registration;
Registration of Transfer and Exchange |
23 |
| Section 306. |
Mutilated,
Destroyed, Lost and Stolen Debt Securities |
27 |
| Section 307. |
Payment
of Interest; Interest Rights Preserved |
28 |
| Section 308. |
Persons
Deemed Owners |
29 |
| Section 309. |
Cancellation |
30 |
| Section 310. |
Computation
of Interest |
30 |
| Section 311. |
Certification
by a Person Entitled to Delivery of a Bearer Security |
30 |
| Section 312. |
Judgments |
30 |
| Article Four |
Satisfaction
and Discharge |
31 |
| Section 401. |
Satisfaction
and Discharge of Indenture |
31 |
| Section 402. |
Section 402.
Application of Trust Money and Eligible Instruments |
32 |
| Section 403. |
Satisfaction,
Discharge and Defeasance of Debt Securities of any Series |
33 |
| Article Five |
Remedies |
35 |
| Section 501. |
Events
of Default |
35 |
| Section 502. |
Acceleration
of Maturity; Rescission and Annulment |
37 |
| Section 503. |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
38 |
| Section 504. |
Trustee
May File Proofs of Claim |
38 |
| Section 505. |
Trustee
May Enforce Claims without Possession of Debt Securities or Coupons |
39 |
| Section 506. |
Application
of Money Collected |
39 |
| Section 507. |
Limitation
on Suits |
40 |
| Section 508. |
Section 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest |
40 |
| Section 509. |
Restoration
of Rights and Remedies |
41 |
| Section 510. |
Rights
and Remedies Cumulative |
41 |
| Section 511. |
Delay
or Omission Not Waiver |
41 |
| Section 512. |
Control
by Holders of Debt Securities |
41 |
| Section 513. |
Waiver
of Past Defaults |
42 |
| Section 514. |
Undertaking
for Costs |
42 |
| Section 515. |
Waiver
of Stay or Extension Laws |
42 |
| Article Six |
The
Trustee |
43 |
| Section 601. |
Certain
Duties and Responsibilities |
43 |
| Section 602. |
Notice
of Default |
44 |
| Section 603. |
Certain
Rights of Trustee |
44 |
| Section 604. |
Not
Responsible for Recitals or Issuance of Debt Securities |
45 |
| Section 605. |
May Hold
Debt Securities or Coupons |
45 |
| |
|
|
|
Table
of Contents
(continued)
Page
| Section 606. |
Money
Held in Trust |
46 |
| Section 607. |
Compensation
and Reimbursement |
46 |
| Section 608. |
Disqualification;
Conflicting Interests |
46 |
| Section 609. |
Corporate
Trustee Required; Eligibility |
47 |
| Section 610. |
Resignation
and Removal; Appointment of Successor |
47 |
| Section 611. |
Acceptance
of Appointment by Successor |
49 |
| Section 612. |
Merger,
Conversion, Consolidation or Succession to Business |
50 |
| Section 613. |
Preferential
Collection of Claims Against Company |
50 |
| Section 614. |
Authenticating
Agent |
50 |
| Article Seven |
Holders’
Lists and Reports By Trustee and Company |
52 |
| Section 701. |
Company
to Furnish Trustee Names and Addresses of Holders |
52 |
| Section 702. |
Preservation
of Information; Communications to Holders |
52 |
| Section 703. |
Reports
by Trustee |
52 |
| Section 704. |
Reports
by Company |
53 |
| Article Eight |
Consolidation,
Merger, Conveyance, Transfer or Lease |
53 |
| Section 801. |
801.
Company May Consolidate, etc. Only on Certain Terms |
53 |
| Section 802. |
Successor
Corporation Substituted |
54 |
| Article Nine |
Supplemental
Indentures |
54 |
| Section 901. |
Supplemental
Indentures without Consent of Holders |
54 |
| Section 902. |
Supplemental
Indentures with Consent of Holders |
55 |
| Section 903. |
Execution
of Supplemental Indentures |
56 |
| Section 904. |
Effect
of Supplemental Indentures |
56 |
| Section 905. |
Conformity
with Trust Indenture Act |
57 |
| Section 906. |
Reference
in Debt Securities to Supplemental Indentures |
57 |
| Article Ten |
Covenants |
57 |
| Section 1001. |
Payment
of Principal, Premium and Interest |
57 |
| Section 1002. |
Maintenance
of Office or Agency |
57 |
| Section 1003. |
Money
for Debt Securities Payments to Be Held in Trust |
58 |
| Section 1004. |
Payment
of Additional Amounts |
60 |
| Section 1005. |
Officers’
Certificate as to Default |
61 |
| Section 1006. |
Waiver
of Certain Covenants |
61 |
| Article Eleven |
Redemption
of Debt Securities |
61 |
| Section 1101. |
Applicability
of Article |
61 |
| Section 1102. |
Election
to Redeem; Notice to Trustee |
61 |
| Section 1103. |
Selection
by Trustee of Debt Securities to be Redeemed |
62 |
| Section 1104. |
Notice
of Redemption |
62 |
| Section 1105. |
Deposit
of Redemption Price |
63 |
| |
|
|
|
Table
of Contents
(continued)
Page
| Section 1106. |
Debt
Securities Payable on Redemption Date |
63 |
| Section 1107. |
Debt
Securities Redeemed in Part |
64 |
| Article Twelve |
Sinking
Funds |
64 |
| Section 1201. |
Applicability
of Article |
64 |
| Section 1202. |
Satisfaction
of Sinking Fund Payments with Debt Securities |
64 |
| Section 1203. |
Redemption
of Debt Securities for Sinking Fund |
65 |
| Article Thirteen |
Repayment
at the Option of Holders |
65 |
| Section 1301. |
Applicability
of Article |
65 |
| Section 1302. |
Repayment
of Debt Securities |
65 |
| Section 1303. |
Exercise
of Option; Notice |
65 |
| Section 1304. |
Election
of Repayment by Remarketing Entities |
66 |
| Section 1305. |
Securities
Payable on the Repayment Date |
66 |
| Article Fourteen |
Meetings
of Holders of Debt Securities |
67 |
| Section 1401. |
Purposes
for Which Meetings May Be Called |
67 |
| Section 1402. |
Call,
Notice and Place of Meetings |
67 |
| Section 1403. |
Persons
Entitled to Vote at Meetings |
67 |
| Section 1404. |
Quorum;
Action |
67 |
| Section 1405. |
Determination
of Voting Rights; Conduct and Adjournment of Meetings |
68 |
| Section 1406. |
Counting
Votes and Recording Action of Meetings |
69 |
| Article Fifteen |
Defeasance |
69 |
| Section 1501. |
Termination
of Company’s Obligations |
69 |
| Section 1502. |
Repayment
to Company |
71 |
| Section 1503. |
Indemnity
for Eligible Instruments |
71 |
| |
|
|
|
INDENTURE (the “Indenture”)
dated as of [ ], between TACTILE SYSTEMS TECHNOLOGY, INC., a Delaware corporation (hereinafter called the
“Company”), having its principal place of business at 3701 Wayzata Blvd, Suite 300, Minneapolis, MN 55416, and [ ],
(hereinafter called the “Trustee”), a national banking association duly organized and validly existing under the laws of
the United States of America having its Corporate Trust Office at [ ].
RECITALS OF THE COMPANY
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, bonds and other
evidences of indebtedness (herein called the “Debt Securities”).
All things necessary have
been done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration
of the premises and the purchase of the Debt Securities of any series created and issued on or after the date hereof by the Holders thereof,
it is mutually covenanted and agreed for the benefit of all Holders of such Debt Securities or of any such series, as follows:
Article One
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this
Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in
Section 905, have the meanings assigned to them therein;
(3) 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 in the United States at the
date of such computation; and
(4) 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.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act” when used
with respect to any Holder has the meaning specified in Section 104.
“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.
“Authorized Newspaper”
means a newspaper in an official language of the country of publication or in the English language customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bearer Security”
means any Debt Security established pursuant to Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
“Board of Directors”
means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect
hereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision
of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Debt
Securities and the forms and terms thereof), such action may be taken by any committee of the Board of the Company or any officer or
employee of the Company authorized to take such action by a Board Resolution.
“Business Day”,
when used with respect to any Place of Payment, means any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to
close.
“Clearstream”
means Clearstream Banking S.A.
“Commission”
means the Securities and Exchange Commission, as 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 on such date.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
and “Company Order” mean, respectively, except as otherwise provided in this Indenture, a written request or order signed
in the name of the Company by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President (any references
to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a
number or word or words added before or after the title “Vice President”), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company or by another officer of the Company duly authorized to sign
by a Board Resolution, and delivered to the Trustee.
“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office
at the date of original execution of this Indenture is located at [ ].
The term “corporation”
includes corporations, associations, companies and business trusts.
The term “coupon”
means any interest coupon appertaining to a Bearer Security.
“Debt Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered
under this Indenture.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary”
means, with respect to the Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary hereunder,
and if at any time there is more than one such Person, “Depositary” as used with respect to the Debt Securities of any such
series shall mean the Depositary with respect to the Debt Securities of that series.
“Designated Currency”
has the meaning specified in Section 312.
“Dollar” or “$”
means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Eligible Instruments”
means monetary assets, money market instruments and securities that are payable in Dollars only and essentially risk free as to collection
of principal and interest, including U.S. Government Obligations.
“Euro” means
the single currency of the European Monetary Union as defined under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty
and under EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any successor European legislation from
time to time.
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exchange Rate”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Agent”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and the amounts payable in Dollars and Foreign Currencies
in respect of the principal of (and premium, if any) and interest on Debt Securities denominated in Euro, any other composite currency
or Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed pursuant to Section 301, and delivered to the Trustee.
“Foreign Currency”
means a currency issued by the government of any country other than the United States of America.
“Global Exchange Agent”
has the meaning specified in Section 304.
“Global Exchange Date”
has the meaning specified in Section 304.
“Global Security”
means a Debt Security issued to evidence all or part of a series of Debt Securities in accordance with Section 303.
“Holder”, with
respect to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires,
shall include the terms of a particular series of Debt Securities established as contemplated by Section 301.
The term “interest”,
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date”,
with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security.
“Maturity”, when
used with respect to any Debt Security, means the date on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel, which is delivered to the Trustee.
“Original Issue Discount
Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”,
when used with respect to Debt Securities means, as of the date of determination, all Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Debt
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt
Securities or portions thereof for whose payment or redemption money or Eligible Instruments in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such Debt Securities and any coupons appertaining thereto; provided,
however, that if such Debt 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; and
(iii) Debt
Securities in exchange for or in lieu of which other Debt Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether
the Holders of the requisite principal amount of Debt Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Company or any other obligor upon the Debt Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Debt Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Debt Securities and that the pledgee is not the Company or any other obligor upon the Debt Securities
or any Affiliate of the Company or of such other obligor.
“Paying Agent”
means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
“Person” means
any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Debt Securities of any series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306
in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
“Redemption Date”,
when used with respect to any Debt 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 Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security
Register.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose
as contemplated by Section 301.
“Remarketing Entity”,
when used with respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such Debt Securities.
“Repayment Date”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
“Repayment Price”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
“Responsible Officer”
when used with respect to the Trustee, means any vice president, any assistant vice president, any senior trust officer or assistant
trust officer, any trust officer, or any other officer associated with the corporate trust department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular
subject.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”
when used with respect to any Debt Security or any installment of interest thereon, means the date specified in such Debt Security or
a coupon representing such installment of interest as the fixed date on which the principal of such Debt Security or such installment
is due and payable.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“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 Debt
Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
“United States”
means the United States of America (including the District of Columbia) and its possessions.
“United States Alien”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or
trust.
“U.S. Government Obligations”
means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt.
Section 102. Compliance
Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if
so requested by the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of 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
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. 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 they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, 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 a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may,
alternatively, be embodied in and evidenced by the record of Holders of Debt Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Debt Securities duly called and held in accordance with the provisions
of Article Fourteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person
of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Debt Securities shall
be proved in the manner provided in Section 1406.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
(c) The
ownership of Registered Securities shall be proved by the Security Register.
(d) The
principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein described;
or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such
Bearer Security is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
(e) The
fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Debt Security.
(g) For
purposes of determining the principal amount of Outstanding Debt Securities of any series the Holders of which are required, requested
or permitted to give any request, demand, authorization, direction, notice, consent, waiver or take any other Act under this Indenture,
(i) each Original Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could be declared
to be due and payable pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to the Trustee
and, where it is hereby expressly required, to the Company, such Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a Foreign Currency or composite currency shall be deemed
to have the principal amount determined by the Exchange Rate Agent by converting the principal amount of such Debt Security in the currency
in which such Debt Security is denominated into Dollars at the Exchange Rate as of the date such Act is delivered to the Trustee and,
where it is hereby expressly required, to the Company, by Holders of the required aggregate principal amount of the Outstanding Debt Securities
of such series (or, if there is no such rate on such date, such rate on the date determined as specified as contemplated in Section 301).
(h) The
Company may set a record date for purposes of determining the identity of Holders of Debt Securities of any series entitled to vote or
consent to any action by vote or consent authorized or permitted by Section 512 or Section 513. Such record date shall be the
later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of such Debt Securities
furnished to the Trustee pursuant to Section 701 prior to such solicitation.
Section 105. Notices, etc.,
to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing (which may be via original or facsimile) to or with the Trustee at its Corporate Trust Office
and which shall be deemed delivered when actually received by a Responsible Officer of the Trustee, or
(2) the
Company 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 addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the
Company.
The Trustee agrees to accept and act upon instructions
or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods;
provided, however, that (a) the party providing such electronic instructions or directions, subsequent to the transmission
thereof, 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.
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 or directions notwithstanding such instructions or directions conflict or are inconsistent with
a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party providing
instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid, agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 106. Notice
to Holders; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at such
Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and (2) such notice shall be sufficiently given to Holders of Bearer Securities by publication
thereof in an Authorized Newspaper in The City of New York and, if the Debt Securities of such series are then listed on any stock exchange
outside the United States and such stock exchange shall so require, in any other required city outside the United States or, if not practicable,
in Europe on a Business Day at least twice, the first such publication to be not later than the latest date and not earlier than the earliest
date prescribed for the giving of such notice.
In case, by reason of the suspension of or irregularities
in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders of Registered
Securities when said notice is required to be given pursuant to any provision of this Indenture or of the Debt Securities, then any manner
of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. In any case where
notice to Holders of Registered Securities is to be given by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication
of any Authorized Newspaper, or by reason of any other cause, it shall be impossible or impracticable to make publication of any notice
to Holders of Bearer Securities as provided above, then such method of publication or notification as shall be made with the approval
of the Trustee shall constitute a sufficient publication of such notice. Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders
of Registered Securities as provided above.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language, except that
any published notice may be in an official language of the country of publication.
Section 107. Conflict
with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act,
such required provision shall control.
Section 108. 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 109. Successors
and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability
Clause.
In case any provision in this Indenture or in the
Debt Securities or any coupons 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 111. Benefits
of Indenture.
Nothing in this Indenture or in the Debt Securities
or any coupons, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying
Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing
Law.
This Indenture and the Debt Securities and any
coupons shall be governed by and construed in accordance with the laws of the State of New York.
Section 113. Legal
Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repayment Date or Stated Maturity of any Debt Security shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or coupons) 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, Redemption Date, Repayment Date or at the Stated Maturity, and no interest
shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated
Maturity, as the case may be.
Section 114. Counterparts.
This Indenture 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 but one
and the same Indenture.
Section 115. Exemption
from Individual Liability.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Debt Security or any coupon, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are
solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debt Securities or any coupon or implied therefrom; and that any and all such personal liability, either
at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or any coupon or implied, therefrom
are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture and the issue of
such Debt Securities.
Article Two
Debt Security Forms
Section 201. Forms
Generally.
The Registered Securities, if any, and the Bearer
Securities and related coupons, if any, of each series shall be in substantially the form (including temporary or permanent global form)
as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with the
rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such Debt Securities
or coupons, as evidenced by their signatures on the Debt Securities or coupons. If the form of Debt Securities of any series or coupons
(including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301,
Debt Securities in bearer form other than Debt Securities in temporary or permanent global form shall have coupons attached.
The definitive Debt Securities and coupons, if
any, 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 Debt Securities, as evidenced by the execution of such Debt Securities and coupons.
Section 202. Form of
Trustee’s Certificate of Authentication.
This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
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as Trustee |
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Authorized Signatory |
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Dated |
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Section 203. Debt
Securities in Global Form.
If Debt Securities of a series are issuable in
whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, such Global Security shall represent such of the outstanding Debt Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Debt Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding
Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall
apply to any Debt Securities represented by a Debt Security in global form if such Debt Security was never issued and sold by the Company
and the Company delivers to the Trustee the Debt Security in global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with respect to the reduction in the principal amount of Debt Securities
represented thereby, together with the written statement contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered
or bearer form and in either temporary or permanent form.
Article Three
The Debt Securities
Section 301. Amount
Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more
series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the
title of the Debt Securities of the series;
(2) the
limit, if any, upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any Debt Securities which,
pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the
date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(4) the
rate or rates, if any, at which the Debt Securities of the series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall
be payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances,
if any, in which the Company may defer interest payments;
(5) the
place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Debt Securities
of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Debt Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served and where notices to Holders pursuant to Section 106 will be published;
(6) if
applicable, the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(7) the
obligation, if any, of the Company to redeem, repay or purchase Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether
Debt Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Debt Securities of the series
are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first Debt Security of such series of like tenor and term to be issued;
(9) whether
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the
Global Exchange Date and Global Exchange Agent;
(10) if
Debt Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities and whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in
respect of an Interest Payment Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion
of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon
which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such
Interest Payment Date if other than as provided in this Article Three;
(11) whether,
and under what conditions, additional amounts will be payable to Holders of Debt Securities of the series pursuant to Section 1004;
(12) the
denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) if
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) the
currency or currencies of denomination of the Debt Securities of any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the Euro, and, if any such currency of denomination is a composite currency other than the Euro,
the agency or organization, if any, responsible for overseeing such composite currency;
(15) the
currency or currencies in which payment of the principal of (and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and premium, if any) or the interest on Registered Securities, at
the election of each of the Holders thereof, may also be payable and the periods within which and the terms and conditions upon which
such election is to be made, and the Exchange Rate and the person who shall be the Exchange Rate Agent for the Debt Securities of such
series;
(16) if
payments of principal of (and premium, if any) or interest on the Debt Securities of the series are to be made in a Foreign Currency other
than the currency in which such Debt Securities are denominated, the manner in which the Exchange Rate with respect to such payments shall
be determined;
(17) any
Events of Default with respect to Debt Securities of such series, if not set forth herein;
(18) any
other covenant or warranty included for the benefit of the Debt Securities of the series in addition to (and not inconsistent with) those
set forth herein for the benefit of Debt Securities of all series, or any other covenant or warranty included for the benefit of Debt
Securities of the series in lieu of any covenant or warranty set forth herein for the benefit of Debt Securities of all series, or any
provision that any covenant or warranty set forth herein for the benefit of Debt Securities of all series shall not be for the benefit
of Debt Securities of such series, or any combination of such covenants, warranties or provisions and whether the provisions of Section 1006
will not apply such covenants and warranties;
(19) the
terms and conditions, if any, pursuant to which the Company’s obligations under this Indenture may be terminated through the deposit
of money or Eligible Instruments as provided in Articles Four and Fifteen;
(20) the
Person or Persons who shall be Security Registrar for the Debt Securities of such series if other than the Trustee, and the place or places
where the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents,
if other than the Trustee; and
(21) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons
appertaining to Bearer Securities of such series, if any, shall be substantially identical except, in the case of Registered Securities,
as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’
Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be
issued at various times, with different dates on which the principal or any installment of principal is payable, with different rates
of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest may
be payable and with different Redemption or Repayment Dates and may be denominated in different currencies or payable in different currencies.
If any of the terms of a series of Debt Securities
are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate
setting forth the terms of the series.
Section 302. Denominations.
Debt Securities of each series shall be issuable
in such form and denominations as shall be specified in the form of Debt Security for such series approved or established pursuant to
Section 201 or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in denominations of $5,000.
Section 303. Execution,
Authentication, Delivery and Dating.
(a) The
Debt Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President, and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. The signature of any of these officers on the Debt Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Debt Securities
or coupons of any series or did not hold such offices at the date of such Debt Securities or coupons.
(b) At
any time and from time to time after the execution and delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as otherwise provided in this Article Three, shall thereupon
be authenticated and delivered by the Trustee upon Company Order, without any further action by the Company; provided, however,
that, in connection with its original issuance, a Bearer Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii) and
(iv), unless such certification shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company has
no reason to know that such certification is false.
To the extent authorized in or pursuant to a Board
Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, such written
Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and may provide instructions
as to registration of holders, principal amounts, rates of interest, maturity dates and other matters contemplated by such Board Resolution
and Officers’ Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing and delivering the
first Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the Trustee (i) the
certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting
the additional responsibilities under this Indenture in relation to any such Debt Securities, the Trustee shall be entitled to receive,
prior to the initial authentication of such Debt Securities, and (subject to Section 601) shall be fully protected in relying upon:
(i) a
Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified
by the Secretary or an Assistant Secretary of the Company;
(ii) an
executed supplemental indenture, if any, relating thereto;
(iii) an
Officers’ Certificate setting forth the form and terms of the Debt Securities of such series and coupons, if any, pursuant to Sections
201 and 301 and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Debt Securities
have been complied with; and
(iv) an
Opinion of Counsel stating
(A) that
the form of such Debt Securities and coupons, if any, has been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 201 in conformity with the provisions of this Indenture;
(B) that
the terms of such Debt Securities and coupons, if any, have been established in or pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 301 in conformity with the provisions of this Indenture; and
(C) that
such Debt Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally and the application of general principles of equity and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to any Debt Securities denominated other than in Dollars (or
a Foreign Currency or currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (ii) governmental authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States.
(c) If
the Company shall establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and
the Company Order with respect to such series, authenticate and deliver one or more Global Securities in permanent or temporary form that
(i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instructions.
(d) The
Trustee shall have the right to decline to authenticate and deliver any Debt Securities under this Section 303 if the issuance of
such Debt Securities will adversely affect the Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e) If
all the Debt Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at
the time of issuance of each Debt Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at or
prior to the time of the first issuance of Debt Securities of such series.
(f) Each
Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
(g) No
Debt Security or coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein executed by the
Trustee, and such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has
been duly authenticated and delivered hereunder. Except as permitted by Section 306, the Trustee shall not authenticate and deliver
any Bearer Security unless all related coupons for interest then matured have been detached and cancelled. Notwithstanding the foregoing,
if any Debt Security or portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Debt Security
or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Debt Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each
Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Section 304. Temporary
Debt Securities.
(a) Pending
the preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of documents required by Sections
301 and 303, together with a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the definitive Debt Securities
in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities may determine,
as evidenced by their signatures on such Debt Securities. In the case of Debt Securities of any series issuable as Bearer Securities,
such temporary Debt Securities may be in global form, representing all or any part of the Outstanding Debt Securities of such series.
(b) Unless
otherwise provided pursuant to Section 301:
(i) Except
in the case of temporary Debt Securities in global form, if temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt Securities
of such series, the related temporary Debt Securities shall be exchangeable for such definitive Debt Securities upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied, if applicable,
by all unmatured coupons and all matured coupons in default appertaining thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Debt Securities of the same series of like tenor and terms and
of authorized denominations; provided, however, that no Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If
Debt Securities of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of Euroclear and Clearstream, for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such other accounts as they may direct).
(iii) Without
unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary Global
Security (the “Global Exchange Date”), the Company shall deliver definitive Debt Securities to the Trustee or the agent appointed
by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Debt Securities (the
“Global Exchange Agent”), in an aggregate principal amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such temporary Global Security shall be surrendered by the Depositary to
the Global Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive Debt Securities without charge and the
Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant to Section 614, shall authenticate and deliver, in exchange
for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Debt Securities of the same series
of authorized denominations and of like tenor and terms as the portion of such temporary Global Security to be exchanged. Upon any exchange
of a part of such temporary Global Security for definitive Debt Securities, the portion of the principal amount and any interest thereon
so exchanged shall be endorsed by the Global Exchange Agent on a schedule to such temporary Global Security, whereupon the principal amount
and interest payable with respect to such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.
The definitive Debt Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered
form, global registered form or global bearer form, or any combination thereof, as specified as contemplated by Section 301, and,
if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, in the case
of the exchange of the temporary Global Security for definitive Bearer Securities (including a definitive Global Bearer Security), upon
such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be exchanged and a certificate signed by Clearstream as to the
portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit B to this
Indenture, unless such certificate(s) shall have been provided earlier pursuant to section 304(b)(v) hereof; and provided,
further, that definitive Bearer Securities (including a definitive Global Bearer Security) shall be delivered in exchange for a portion
of a temporary Global Security only in compliance with the requirements of Section 303.
(iv) The
interest of a beneficial owner of Debt Securities of a series in a temporary Global Security shall be exchanged for definitive Debt Securities
of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs Euroclear or Clearstream,
as the case may be, to request such exchange on such account holder’s behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global Bearer Security), unless such certificate(s) shall have
been provided earlier pursuant to Section 304(b)(v) hereof, the account holder delivers to Euroclear or Clearstream, as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier than
15 days prior to the Global Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream,
the Global Exchange Agent, any authenticating agent appointed for such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Debt Securities must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not take delivery of such definitive Debt Securities in person at the offices of Euroclear
and Clearstream. Definitive Debt Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security
shall be delivered only outside the United States.
(v) Until
exchanged in full as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of the same series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest Payment Date shall be payable to Euroclear and Clearstream
on such Interest Payment Date only if there has been delivered by Euroclear and Clearstream to the Global Exchange Agent a certificate
or certificates in the form set forth in Exhibit B to this Indenture dated no earlier than the first Interest Payment Date, for credit
without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners
of such temporary Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may
be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no earlier than the first
Interest Payment Date. Any interest so received by Euroclear and Clearstream and not paid as herein provided prior to the Global Exchange
Date shall be returned to the Global Exchange Agent which, upon expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 1003.
Section 305. Registration;
Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the
offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305 and Section 1002,
with respect to the Debt Securities of each series which are Registered Securities, a register (herein sometimes 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 Registered Securities and of transfers of Registered Securities. Pursuant to Section 301, the Company shall appoint, with respect
to Debt Securities of each series which are Registered Securities, a “Security Registrar” for the purpose of registering such
Debt Securities and transfers and exchanges of such Debt Securities as herein provided.
Upon surrender for registration of transfer of
any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities
of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination, of like tenor
and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Bearer
Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder, Registered Securities
or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified as contemplated by Section 301
with respect to a Bearer Security in global form) of the same series, of any authorized denominations and of like tenor and terms and
aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Debt Securities which the Holder making the
exchange is entitled to receive.
If at any time the Depositary for the Debt Securities
of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Debt Securities of such series or if
at any time the Depositary for the Debt Securities of such series shall no longer be eligible under Section 303(h), the Company shall
appoint a successor Depositary with respect to the Debt Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility,
the Company’s election pursuant to Section 301(9) shall no longer be effective with respect to the Debt Securities of
such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security
or Securities.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301
with respect to a series of Debt Securities, the Depositary for such series of Debt Securities may surrender a Global Security for such
series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor and terms and in definitive
form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate
and deliver, without charge to any Holder,
(a) to
each Person specified by such Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized
denominations as requested by such person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(b) to
such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will authenticate and deliver Debt Securities (a) in definitive registered
form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (b) in definitive
bearer form in authorized denominations, with coupons attached, if the Debt Securities of such series are issuable as Bearer Securities
or (c) as either Registered or Bearer Securities, as shall be specified by the beneficial owner thereof, if the Debt Securities of
such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange for
a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further
that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
Upon the exchange of a Global Security for Debt
Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Registered Securities to the persons in whose names such Debt Securities are so registered. The Trustee
shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, and in such authorized
denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security
a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
All Debt Securities issued upon any registration
of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No charge to any Holder shall be made for any registration
of transfer or exchange of Debt 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 transfer, registration of transfer or exchange of Debt Securities, other than exchanges
expressly provided in this Indenture to be made at the Company’s own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue,
register the transfer of or exchange Debt Securities of any particular series to be redeemed for a period of fifteen days preceding the
first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication, the mailing
of the relevant notice of redemption of Debt Securities of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to
exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security
of like tenor and terms of that series, provided that such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary,
the exchange of Bearer Securities into Registered Securities shall be subject to applicable laws and regulations in effect at the time
of exchange; neither the Company, the Trustee nor the Security Registrar shall exchange any Bearer Securities into Registered Securities
if it has received an Opinion of Counsel that as a result of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order directing the
Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary. The Company
shall deliver copies of such Company Orders to the Security Registrar.
Section 306. Mutilated,
Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer
Security with a mutilated coupon appertaining to it is surrendered to a Paying Agent outside the United States designated by the Company,
or, in the case of any Registered Security, to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Debt Security or coupon, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company and the Trustee that
such Debt Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Debt Security or Bearer Security with a mutilated coupon appertaining
to it or to which a destroyed, lost or stolen coupon appertains (with all related coupons not destroyed, lost or stolen) or in lieu of
any such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor and terms and principal amount, bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Debt
Security or to the Debt Security to which such destroyed, lost or stolen coupon appertains; provided, however, that any such new
Bearer Security will be delivered only in compliance with the conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or
stolen Debt Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Debt Security, pay such Debt Security or coupon; provided, however, that payment of principal of (and premium, if any) and
any interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located
outside the United States; and provided, further, that, with respect to any such coupons, interest represented thereby (but not
any additional amounts payable as provided in Section 1004), shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Debt Security or coupons
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 the Trustee and printing expenses) connected therewith.
Every new Debt Security of any series, with its
coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange for a Bearer
Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of that series and their coupons, if any, 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 Debt Securities or coupons.
Section 307. Payment
of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Registered Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. In case a
Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency)
on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment
Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. At
the option of the Company, payment of interest on any Registered Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the Person entitled thereto as such address shall appear in
the Security Register or by wire transfer to an account in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security of any
series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or
(2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered 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 Registered Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money and/or, to the extent such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and providing no tax liability
will be imposed upon the Trustee or the Holder of such Registered Securities) will provide money in such amounts as will (together with
any money irrevocably deposited in trust with the Trustee, without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money and/or Eligible Instruments when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the 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 written notice of the proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish
the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business
on such Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the Security Register, 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered 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 (2).
In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
(2) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Registered 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 Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Subject to the limitations set forth in Section 1002,
the Holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable on such coupon upon presentation
and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency maintained for such purpose pursuant
to Section 1002.
Section 308. Persons
Deemed Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security
or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
None of the Company, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 309. Cancellation.
Unless otherwise provided with respect to a series
of Debt Securities, all Debt Securities and coupons surrendered for payment, redemption, repayment, transfer, exchange or credit against
any sinking fund payment pursuant to this Indenture, shall, if surrendered to the Company or any agent of the Company, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Debt Securities
so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or in exchange for any Debt
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Debt Securities and coupons
held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company
shall direct that the cancelled Debt Securities or coupons be returned to it.
Section 310. Computation
of Interest.
Except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 311. Certification
by a Person Entitled to Delivery of a Bearer Security.
Whenever any provision of this Indenture or a Debt
Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be approved by the Company
and consented to by the Trustee whose consent shall not unreasonably be withheld.
Section 312. Judgments.
The Company may provide, pursuant to Section 301,
for the Debt Securities of any series that, to the fullest extent possible under applicable law and except as may otherwise be specified
as contemplated in Section 301, (a) the obligation, if any, of the Company to pay the principal of (and premium, if any) and
interest on the Debt Securities of any series and any related coupons in a Foreign Currency, composite currency or Dollars (the “Designated
Currency”) as may be specified pursuant to Section 301 is of the essence and that judgments in respect of such Debt Securities
shall be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal
of (and premium, if any) and interest on such Debt Securities and any related coupons shall, notwithstanding any payment in any other
currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency
(after any premium and cost of exchange) in the country of issue of the Designated Currency in the case of Foreign Currency or Dollars
or in the international banking community in the case of a composite currency on the Business Day immediately following the day on which
such Holder receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short
of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
Article Four
Satisfaction and Discharge
Section 401. 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 Debt Securities herein expressly
provided for and rights to receive payments of principal and interest thereon and any right to receive additional amounts, as provided
in Section 1004) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(A) all
Debt Securities theretofore authenticated and delivered and all coupons appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305, (ii) Debt Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption
or surrendered for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has
been waived as provided in Section 1106 or 1303 and (iv) Debt Securities and coupons for whose payment money and/or Eligible
Instruments have 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 1003) have been delivered to the Trustee cancelled or for cancellation; or
(B) all
such Debt Securities not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders of Debt Securities)
will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such Debt Securities and coupons of such series for principal (and premium,
if any) and interest, and any mandatory sinking fund, repayment or analogous payments thereon, on the scheduled due dates therefor to
the date of such deposit (in the case of Debt Securities and coupons which have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities repayable at the option of the Holders thereof); provided, however,
that in the event a petition for relief under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar
law is filed with respect to the Company within 91 days after the deposit, the obligations of the Company under the Indenture with respect
to the Debt Securities of such series shall not be deemed terminated or discharged, and in such event the Trustee shall be required to
return the deposited money and Eligible Instruments then held by the Trustee to the Company;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) 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 607 and, if money or Eligible Instruments shall have been deposited with
the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Section 402.
Application of Trust Money and Eligible Instruments.
(a) Subject
to the provisions of the last paragraph of Section 1003, all money and Eligible Instruments deposited with the Trustee pursuant to
Section 401, 403 or 1501 shall be held in trust and such money and the principal and interest received on such Eligible Instruments
shall be applied by it, in accordance with the provisions of the Debt Securities, any coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose payment such money or Eligible Instruments have been deposited
with the Trustee.
(b) The
Trustee shall deliver or pay to the Company from time to time upon Company Request any Eligible Instruments or money held by it as provided
in Section 403 or 1501 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited
for the purpose for which such Eligible Instruments or money were deposited or received.
(c) The
Trustee shall deliver to the Company from time to time upon Company Request any Eligible Instruments held by it as provided in Section 403
or 1501, provided that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Eligible Instruments
which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, would then be sufficient to satisfy the Company’s payment obligations in respect of the Debt Securities in the manner
contemplated by Section 403 or 1501.
Section 403. Satisfaction,
Discharge and Defeasance of Debt Securities of any Series.
If this Section 403 is specified, as contemplated
by Section 301, to be applicable to Debt Securities of any series, then, notwithstanding Section 401, (i) the Company shall
be deemed to have paid and discharged the entire indebtedness on all the Outstanding Debt Securities of any such series and related coupons;
(ii) the provisions of this Indenture as it relates to such Outstanding Debt Securities and related coupons shall no longer be in
effect (except as to the rights of Holders of Debt Securities to receive, from the trust fund described in subparagraph (1) below,
payment of (x) the principal of (and premium, if any) and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal (and premium, if any) or installment of principal (and premium,
if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments applicable to the Debt Securities of that
series on that day on which such payments are due and payable in accordance with the terms of this Indenture and of such Debt Securities,
the Company’s obligations with respect to such Debt Securities under Sections 304, 305, 306, 1002, 1003 and 1004 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including those under Section 607 hereof); and (iii) the Trustee,
at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with
respect to all Outstanding Debt Securities of such series and related coupons, with reference to this Section 403, the Company has
deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree
to comply with the provisions of this Section 403 applicable to it) irrevocably, as trust funds in trust, money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders of such Debt Securities)
will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium, if any) and interest on the Outstanding Debt Securities of
that series and related coupons on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company
prior to the Stated Maturity thereof, and the Company shall have given irrevocable instructions to the Trustee to effect such redemption,
at the date fixed for such redemption pursuant to Article Eleven, and (ii) any mandatory sinking fund payments or analogous
payments applicable to Debt Securities of such series on the date on which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities; or
(B) the
Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Debt Securities of such series;
(2) the
Company has paid or caused to be paid all sums payable with respect to the Outstanding Debt Securities of such series and related coupons;
(3) such
deposit will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(4) no
Event of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1),
(2), (3), (5) or (6) with respect to the Debt Securities of such series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or event which, with the giving of notice
or lapse of time, or both, would become an Event of Default under Section 501(5) or Section 501(6) shall have occurred
and be continuing on the 91st day after such date; provided, however, that should that condition fail to be satisfied on
or before such 91st day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such deposit to the
Company;
(5) the
Company has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of
Debt Securities and related coupons of such series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(6) if
the Debt Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Debt Securities to be
delisted;
(7) such
deposit shall have been effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company
in connection therewith pursuant to Section 301; and
(8) 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 the entire indebtedness of all Outstanding Debt Securities and related
coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow or trust agreement in form and substance satisfactory to the Trustee.
If any Outstanding Debt Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow or trust agreement shall provide
therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth
in this Section 403 with respect to all the Outstanding Debt Securities of any series, the terms and conditions of such series, including
the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company;
provided that the Company shall not be discharged from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be valid obligations
of the Company under applicable law.
Notwithstanding the cessation, termination and
discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company under this Indenture
with respect to any series of Debt Securities, the obligations of the Company to the Trustee under Section 607, and the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to such series of Debt Securities.
Article Five
Remedies
Section 501. Events
of Default.
“Event of Default”, wherever used herein
with respect to Debt 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, pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Debt Security of such series or a related coupon, if any, when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default
in the payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a Debt Security of such series; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of Debt Securities of a series other than such series), and continuance of such default or breach
for a period of 90 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 principal amount of the Outstanding Debt Securities of such 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
(5) the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the
commencement by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action; or
(7) any
other Event of Default, if any, provided with respect to Debt Securities of such series specified as contemplated by Section 301.
Section 502. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than
25% in principal amount of Outstanding Debt Securities of such series may declare the principal amount (or, if the Debt Securities of
such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series)
of and all accrued but unpaid interest on all the Debt Securities of such series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount (or specified amount)
shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment of principal
of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration
with respect to Debt 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 Debt Securities
of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all
overdue installments of interest on all Debt Securities of such series and any related coupons,
(B) the
principal of (and premium, if any, on) any Debt Securities of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in such Debt Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue installments of interest on each Debt Security and any related
coupons at the rate or rates prescribed therefor in such Debt Securities, and
(D) 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
(2) all
Events of Default with respect to Debt Securities of such series, other than the non-payment of the principal of Debt Securities of such
series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default
is made in the payment of any installment of interest on any Debt Security or any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Debt Securities and any related coupons, the amount then due and payable on such Debt Securities and coupons for
principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest upon
the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates prescribed therefor in such
Debt 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 for the collection
of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company
or any other obligor upon such Debt Securities and coupons and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt Securities and coupons, wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such series and any related coupons 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.
Section 504. Trustee
May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings, or any voluntary or involuntary
case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any other obligor upon the Debt Securities
of a particular series or any related coupons or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Debt Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceedings or otherwise,
(1) to
file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Debt Securities
of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator
or other similar official in any such 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 607.
Nothing herein contained 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 Debt Securities or any coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee
May Enforce Claims without Possession of Debt Securities or Coupons.
All rights of action and claims under this Indenture
or the Debt Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Debt Securities or
coupons 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 Debt Securities and coupons in respect of which such judgment has been recovered.
Section 506. 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 (and premium, if any) or interest, upon presentation of the Debt Securities or any coupons, or both,
as the case may be, 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 607;
SECOND: To the payment of the amounts then due
and unpaid for principal of (and premium, if any) and interest on the Debt Securities and any coupons, in respect of which or for the
benefit of which such money has been collected ratably, without preference or priority of any kind, according to the amounts due and payable
on such Debt Securities and any coupons for principal (and premium, if any) and interest, respectively. The Holders of each series of
Debt Securities denominated in Euro, any other composite currency or a Foreign Currency and any matured coupons relating thereto shall
be entitled to receive a ratable portion of the amount determined by the Exchange Rate Agent by converting the principal amount Outstanding
of such series of Debt Securities and matured but unpaid interest on such series of Debt Securities in the currency in which such series
of Debt Securities is denominated into Dollars at the Exchange Rate as of the date of declaration of acceleration of the Maturity of the
Debt Securities; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation
on Suits.
No Holder of any Debt Securities of any series
or any related coupons 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
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Debt Securities of such 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;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) 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 Debt Securities of such series;
it being understood and intended that no one or more of such Holders
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 such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Section 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security or coupon shall have the right which is absolute and unconditional to receive payment of the principal
of (and premium, if any) and (subject to Section 307) interest on such Debt Security or payment of such coupon on the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in the case of redemption or repayment, on the Redemption
Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration
of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceedings 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 the Company, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights
and Remedies Cumulative.
Except as otherwise provided in Section 306,
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 511. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Debt Security or coupon 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.
Section 512. Control
by Holders of Debt Securities.
The Holders of a majority in principal amount of
the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of such
series, provided, that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture;
(2) subject
to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the
Trustee may take any other action deemed necessary by the Trustee which is not inconsistent with such direction.
Section 513. Waiver
of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt Securities of any such series and
any related coupons waive any past default hereunder with respect to such series and its consequences, except a default
(1) in
the payment of the principal of (or premium, if any) or interest on any Debt Security of such series, or
(2) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking
for Costs.
All parties to this Indenture agree, and each Holder
of any Debt Security or coupon by his 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having a due regard to the merits and good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Debt Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Debt
Security or the payment of any coupons on or after the respective Stated Maturity or Maturities expressed in such Debt Security or coupon
(or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may be).
Section 515. Waiver
of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law whenever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits 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 Six
The Trustee
Section 601. Certain
Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default,
(i) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
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).
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this
subsection shall not be construed to limit the effect of subsection (a) of this Section 601;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Debt Securities of any series, determined as provided in Sections
101, 104 and 512, 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 Debt 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.
(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 602. Notice
of Default.
If a default occurs hereunder with respect to Debt
Securities of any series the Trustee shall transmit by mail to all Holders of Debt Securities of such series notice of such default as
and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified
in Section 501(4) with respect to Debt Securities of such series no such notice to Holders shall be given until at least 30
days after the occurrence thereof; and provided further, that, except in the case of a default in the payment of principal of (or
premium, if any) or interest on any Debt Security of such series or related coupons or in the payment of any sinking fund installment
with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of the Debt Securities of such series. For the purpose of this Section,
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 Debt Securities of such series.
Section 603. Certain
Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any signature, resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order 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 an Officers’ Certificate;
(d) the
Trustee may consult with counsel and the 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 Debt Securities of such series or any related coupons pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which 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, coupon, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney, other than any such books or records containing information as to the
affairs of the customers of the Company or any of its subsidiaries; provided that the Trustee may examine such books and records
relating to customers to the extent that such books and records contain information as to any payments made to such customers in their
capacity as Holders of Debt Securities; and provided further that the Trustee shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation; and
(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; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and
the Trustee shall not be responsible for any act or omission by any of them.
Section 604. Not
Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee’s certificates of authentication, and in any coupons, and the information in any registration statement, including
all attachments thereto, except information provided by the Trustee therein, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities of any series or any coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no representations as to the
Company’s ability or authority to issue Bearer Securities or the lawfulness thereof.
Section 605. May Hold
Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar
or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Debt Securities
and coupons, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such agent.
Section 606. Money
Held in Trust.
Money held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent
shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation
and Reimbursement.
The Company agrees
(1) to
pay to the Trustee from time to time such compensation for all services rendered by it hereunder which shall have been separately agreed
to from time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) 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
or willful misconduct; and
(3) to
fully indemnify the Trustee for, and to hold it harmless against, any and all claims, losses, liabilities, damages or expenses (including
taxes other than taxes based upon the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations
of the Company under this Section the Trustee shall have a claim prior to the Debt Securities and any coupons upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest
on particular Debt Securities or any coupons.
Section 608. Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any 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 such
Act, the Trustee shall not be deemed to have a conflicting interest with respect to Debt Securities of any series by virtue of being a
trustee under this Indenture with respect to any particular series of Debt Securities.
Section 609. Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and organized and doing business under
the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000, and subject to supervision or examination by Federal or State authority;
provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other jurisdiction to
serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically amended to permit
a corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign promptly in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation
and Removal; Appointment of Successor.
(a) 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 under Section 611.
(b) The
Trustee may resign at any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee 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 Debt Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30 days of receipt of such Act specifying removal, the removed
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 Debt Securities of such series.
(d) If
at any time:
(1) the
Trustee shall fail to comply with Section 608 with respect to the Debt Securities of any series after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 with respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the
Trustee shall become incapable of acting with respect to any series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order
by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the
Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action
in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to such series or (ii) subject to Section 514, any Holder who has been a bona fide Holder
of a Debt Security of any series 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 for the Debt Securities of such series and the appointment of a successor Trustee.
In addition, the Company may remove the Trustee if the Company shall determine by a Board Resolution that the services provided by the
Trustee hereunder may be obtained at a substantially lower cost to the Company.
(e) If
the Trustee shall resign, be removed or become incapable of acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Debt 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, become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 514,
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 Debt Securities of such series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security
Register and, if Debt Securities of such series are issuable as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with
respect to the Debt Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance
of Appointment by Successor.
(a) In
the case of an appointment hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company 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 request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges due under Section 607 hereof, 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.
(b) In
the case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and
which (1) 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 Debt Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt
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 Debt 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 (3) 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 Debt Securities of that or those series to which
the appointment of such successor Trustee relates; but, on the 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 Debt Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company 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 paragraph (a) or (b) of this Section, as the case
may be.
(d) 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 612. 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 of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto. In case any Debt Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation or
sale to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in either its own name or that
of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the
Trustee.
Section 613. Preferential
Collection of Claims Against Company.
If and when the Trustee shall be or shall become
a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Debt Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any such other obligor).
Section 614. Authenticating
Agent.
The Trustee shall upon Company request appoint
one or more authenticating agents with respect to one or more series of Debt Securities which shall be authorized on behalf of the Trustee
in authenticating Debt Securities of such series in connection with the issue, delivery, registration of transfer, exchange, partial redemption
or repayment of such Debt Securities. Wherever reference is made in this Indenture to the authentication of Debt Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication 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 must be acceptable to the Company and must be a corporation organized and doing business under the laws of the United States or
of any State, having a combined capital and surplus of at least $1,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by Federal or State authorities or the equivalent foreign authority in the case of an authenticating agent
who is not organized and doing business under the laws of the United States or of any State thereof or the District of Columbia.
Any corporation succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating agent without the execution or filing of any paper or any further
act on the part of the Trustee or such authenticating agent.
An authenticating agent may at any time resign
with respect to one or more series of Debt Securities by giving written notice of resignation to the Trustee and to the Company. The Trustee
may at any time terminate the agency of any authenticating agent with respect to one or more series of Debt Securities by giving written
notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee
promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating
agent herein. No successor authenticating agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating
agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed
for such payment, subject to the provisions of Section 607.
The provisions of Sections 104, 111, 306, 309,
603, 604, 605 and 607 shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section,
the Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee’s certificate of
authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
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As Authenticating Agent for the Trustee |
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Authorized Signatory |
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Article Seven
Holders’ Lists and Reports By Trustee and Company
Section 701. Company
to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually,
not more than 15 days after the Regular Record Date in respect of the Debt Securities of such series or on May 15 and November 15
of each year with respect to each series of Debt Securities for which there are no Regular Record Dates, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or May 1
or November 1, as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall
be the Security Registrar, no such list need be furnished.
Section 702. Preservation
of Information; Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years
the names and addresses of Holders of Bearer Securities filed with the Trustee by such Holders.
(b) The
rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every
Holder of Debt Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee shall be held accountable by reason of any disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports
by Trustee.
(a) Within
60 days after May 15 of each year commencing with the first May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the manner
required by the Trust Indenture Act.
(b) A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Debt Securities of such series are listed, with the Commission and also with the Company. The Company will notify the Trustee when
any series of Debt Securities are listed on any stock exchange.
Section 704. Reports
by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days of filing with the Commission.
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 compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).
Article Eight
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. 801.
Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge
into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:
(1) the
corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under
the laws of the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including all additional amounts, if any, payable pursuant to Section 1004) on all the Debt
Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been met.
Section 802. Successor
Corporation Substituted.
Upon any consolidation with or merger into any
other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation 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 had been named as the Company herein, and thereafter, except in the case of a lease
of the properties and assets of the Company substantially as an entirety, the Company (which term for this purpose shall mean the Person
named as the “Company” in the first paragraph of this instrument or any successor corporation which shall theretofore have
become such in the manner presented in this Article) shall be relieved of all obligations and covenants under this Indenture and the Debt
Securities and any coupons.
Article Nine
Supplemental Indentures
Section 901. Supplemental
Indentures without Consent of Holders.
Without the consent of any Holders, the Company,
when authorized by a Board Resolution, 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:
(1) to
evidence the succession of another corporation to the Company, and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to
add to the covenants of the Company, for the benefit of the Holders of all or any series of Debt Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Debt Securities or coupons, stating that such covenants are expressly being included
solely for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to surrender
any right or power herein conferred upon the Company; or
(3) to
add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Debt Securities, stating
that such Events of Default are expressly being included solely to be applicable to such series); or
(4) to
add to, change or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities
of other authorized denominations or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any material
respect; or
(5) to
change or eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become
effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to
establish the form or terms of Debt Securities of any series as permitted by Sections 201 and 301; or
(7) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt 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 611(b); or
(8) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein,
to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, or to make any other additions to, deletions from and other changes to the provisions hereof, provided
such other provisions shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons
in any material respect; or
(9) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Debt Securities of any series
or any related coupons in any material respect.
Section 902. Supplemental
Indentures with Consent of Holders.
With the consent of the Holders of not less than
a majority in principal amount of the Outstanding Debt Securities of all series affected by such supplemental indenture, acting together
as a class, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture of
such Debt Securities of such series and any related coupons; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Debt Security or coupon affected thereby,
(1) change
the Stated Maturity of the principal or any installment of principal of, or any installment of interest on, any Debt Security, or reduce
the principal amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency
in which any Debt Security or the interest thereon or any coupon 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 or repayment, on or after the Redemption Date
or Repayment Date, as the case may be); or
(2) reduce
the percentage in principal amount of the Outstanding Debt 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 reduce the requirements of Section 1404
for quorum or voting; or
(3) modify
any of the provisions of this Section, Section 513 or Section 1006, 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 Debt Security
affected thereby; provided, however, that this clause 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 1006, or the deletion
of this proviso, in accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely
affect the right to repayment, if any, of Debt Securities of any series at the option of the Holders thereof.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders
of the Debt Securities 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 903. Execution
of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section 904. 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 Debt Securities theretofore or thereafter authenticated and delivered hereunder and of
any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity
with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference
in Debt Securities to Supplemental Indentures.
Debt 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 shall so determine,
new Debt Securities of any series and any related coupons so modified as to conform, in the opinion of the Trustee and the Board of Directors,
to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange
for Outstanding Debt Securities of such series and any related coupons.
Article Ten
Covenants
Section 1001. Payment
of Principal, Premium and Interest.
The Company covenants and agrees for the benefit
of each series of Debt Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any)
and interest on the Debt Securities and any related coupons in accordance with the terms of the Debt Securities, any related coupons and
this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if any, payable as provided
in Section 1004 in respect of principal of (or premium, if any, on) such a Debt Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 1002. Maintenance
of Office or Agency.
The Company will maintain in each Place of Payment
for any series of Debt Securities an office or agency where Debt Securities (but, except as otherwise provided below, unless such Place
of Payment is located outside the United States, not Bearer Securities) may be presented or surrendered for payment, where Debt Securities
may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Debt
Securities and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities, the Company will maintain,
subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series which is located outside
the United States where Debt Securities of such series and the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Debt Securities of such series pursuant to Section 1004); provided, however,
that if the Debt Securities of such series are listed on any stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in any required city located outside the United States so long as the Debt
Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of any such office or agency. 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 or demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest
on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the United States; provided, however, payment of principal
of and any premium and interest denominated in Dollars (including additional amounts payable in respect thereof) on any Bearer Security
may be made at an office or agency of, and designated by, the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions
and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Debt Securities, at the option of the Holder of any Bearer Security or related coupon,
payment may be made by check in the currency designated for such payment pursuant to the terms of such Bearer Security presented or mailed
to an address outside the United States or by transfer to an account in such currency maintained by the payee with a bank located outside
the United States.
The Company may also from time to time designate
one or more other offices or agencies (in or outside of such Place of Payment) where the Debt Securities of one or more series and any
related coupons (subject to the preceding paragraph) 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 any series of Debt Securities for such purposes. The Company
will give prompt written notice to the Trustee of any such designation and any change in the location of any such other office or agency.
Section 1003. Money
for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of the principal of (and premium, if any)
or interest on any of the Debt Securities of such series and any related coupons, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or 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 with respect to any series of Debt Securities, it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Debt Securities of such series and any related coupons, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, 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 with respect
to any series of Debt Securities other than 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
(1) hold
all sums held by it for the payment of the principal of (and premium, if any) or interest on Debt Securities of such series and any related
coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give
the Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any related coupons)
in the making of any payment of principal of (and premium, if any) or interest on the Debt Securities of such series or any related coupons;
and
(3) at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of
terminating its obligations under this Indenture with respect to Debt Securities of any series or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company 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 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 principal and interest received on the Eligible
Instruments deposited with the Trustee or any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal of (and premium, if any) or interest on any Debt Security of any series or any related coupons or any
money on deposit with the Trustee or any Paying Agent representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the Holder’s option for repayment pursuant to Section 1106
or 1303 and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such
Debt Security or any coupon appertaining thereto 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 (including the principal and interest
received on Eligible Instruments deposited with the Trustee), and all liability of the Company 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 an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of
New York, and each Place of Payment or mailed to each such Holder, or both, 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 or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 1004. Payment
of Additional Amounts.
If the Debt Securities of a series provide for
the payment of additional amounts, the Company will pay to the Holder of any Debt Security of any series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in the terms of such Debt Securities and this Section to the extent
that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional
amounts in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for
the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Debt Securities
(or if the Debt Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish
the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any) or interest
on the Debt Securities of that series shall be made to Holders of Debt Securities of that series or the related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Debt Securities
of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Debt Securities or coupons and the Company will pay to the Trustee
or such Paying Agent the additional amounts, if any, required by the terms of such Debt Securities and the first paragraph of this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Section 1005. Officers’
Certificate as to Default.
The Company will deliver to the Trustee, on or
before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture, and, if the Company shall be in default, specifying all such defaults
and the nature thereof of which they may have knowledge.
Section 1006. Waiver
of Certain Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition applicable to the Debt Securities of any series pursuant to Section 301 unless such covenant
or condition is determined pursuant to Section 301 not to be subject to this provision if, before the time for such compliance the
Holders of at least a majority in principal amount of all series of the Debt Securities at the time Outstanding to which such covenant
or condition applies shall, acting together as a class, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant 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 covenant or condition shall remain in full force and effect.
Article Eleven
Redemption of Debt Securities
Section 1101. Applicability
of Article.
Debt Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series) in accordance with this Article.
Section 1102. Election
to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all of the
Debt Securities of any series, the Company shall, at least 45 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 and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection
by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by
Section 301 for Debt Securities of any series, if less than all the Debt Securities of any series with like tenor and terms are to
be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Debt Securities of such series with like tenor and terms not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Debt Securities of such series or any integral multiple thereof which is also an authorized denomination)
of the principal amount of Registered Securities or Bearer Securities (if issued in more than one authorized denomination) of such series
of a denomination larger than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, 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 Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which has been or is to be redeemed.
Section 1104. Notice
of Redemption.
Notice of redemption shall be given in the manner
provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Debt Securities to
be redeemed.
All notices of redemption shall state:
(1) the
Redemption Date;
(2) the
Redemption Price;
(3) if
less than all Outstanding Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed;
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date;
(5) the
Place or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all coupons, if any, appertaining
thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) that
Bearer Securities may be surrendered for payment only at such place or places which are outside the United States, except as otherwise
provided in Section 1002;
(7) that
the redemption is for a sinking fund, if such is the case; and
(8) the
CUSIP number, if any.
A notice of redemption published as contemplated
by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed
at the election of the Company shall be given by the Company, or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit
of Redemption Price.
On or prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money and/or, to the extent the Debt Securities to be redeemed are denominated and payable
in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and providing
no tax liability will be imposed upon the Trustee or the Holders of the Debt Securities to be redeemed) will provide money on or prior
to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Debt Securities or portions thereof which are to be redeemed on that date; provided, however, that deposits with respect
to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise provided
in Section 1002, unless otherwise specified as contemplated by Section 301.
Section 1106. Debt
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Debt Securities 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 Debt Securities
shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice, such Debt
Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as otherwise
provided in Section 1002), and provided further, that installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption
shall not be accompanied by all related coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an office or agency located outside of the United States except as otherwise
provided in Section 1002.
If any Debt Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Debt Security.
Section 1107. Debt
Securities Redeemed in Part.
Any Registered Security which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Debt Security without service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered.
Article Twelve
Sinking Funds
Section 1201. Applicability
of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Debt Securities of a series except as otherwise specified as contemplated by Section 301
for Debt Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities of any series is herein referred to as a “mandatory sinking fund payment”, and
any payment in excess of such minimum amount provided for by the term of Debt Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Debt Securities of any series, the amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Debt Securities
of any series as provided for by the terms of Debt Securities of such series.
Section 1202. Satisfaction
of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt
Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, and (2) may apply as a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided for by
the terms of such series; provided that such Debt Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery
or credit of Debt Securities in lieu of cash payments pursuant to this Section 1202, the principal amount of Debt Securities to be
redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking
fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the Company from time to time pay
over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Debt Securities purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released
to the Company.
Section 1203. Redemption
of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Debt Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash, the portion thereof, if any, which
is to be satisfied by crediting Debt Securities of that series pursuant to Section 1202 and the basis for any such credit and, prior
to or concurrently with the delivery of such Officers’ Certificate, will also deliver to the Trustee any Debt Securities to be so
credited and not theretofore delivered to the Trustee. Not less than 30 days (unless a shorter period shall be satisfactory to the Trustee)
before each such sinking fund payment date the Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Debt Securities
shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
Article Thirteen
Repayment at the Option of Holders
Section 1301. Applicability
of Article.
Debt Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 301 for Debt Securities of such series) in accordance with this Article.
Section 1302. Repayment
of Debt Securities.
Each Debt Security which is subject to repayment
in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment Price together
with interest accrued to such Repayment Date as specified pursuant to Section 301.
Section 1303. Exercise
of Option; Notice.
Each Holder desiring to exercise such Holder’s
option for repayment shall, as conditions to such repayment, surrender the Debt Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; provided, however, that surrender of Bearer Securities together with written notice of
exercise of such option shall be made at an office or agency located outside the United States except as otherwise provided in Section 1002.
Such notice, which shall be irrevocable, shall specify the principal amount of such Debt Security to be repaid, which shall be equal to
the minimum authorized denomination for such Debt Security or an integral multiple thereof, and shall identify the Debt Security to be
repaid and, in the case of a partial repayment of the Debt Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion of the principal of the Debt Security surrendered which
is not to be repaid.
If any Bearer Security surrendered for repayment
shall not be accompanied by all unmatured coupons and all matured coupons in default, such Bearer Security may be paid after deducting
from the Repayment Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have been made from the Repayment Price, such Holder shall be entitled to
receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States except as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall
authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered Security or Securities
of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal amount equal to any portion
of the principal of the Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall
authenticate and deliver without service charge to the Holder of any Bearer Security so surrendered a new Registered Security or Securities
or new Bearer Security or Securities (and all related unmatured coupons and matured coupons in default) or any combination thereof of
the same series of any authorized denomination or denominations specified in the foregoing notice, in an aggregate principal amount equal
to any portion of the principal of the Debt Security so surrendered which is not to be paid; provided, however, that the issuance
of a Registered Security therefor shall be subject to applicable laws and regulations, including provisions of the United States Federal
income tax laws and regulations in effect at the time of the exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the repayment of Debt Securities shall relate, in the case of any Debt Security
repaid or to be repaid only in part, to the portion of the principal of such Debt Security which has been or is to be repaid.
Section 1304. Election
of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities
of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any time prior to any Repayment
Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt Securities of such series
from the Holders thereof who give notice and surrender their Debt Securities in accordance with Section 1303.
Section 1305. Securities
Payable on the Repayment Date.
Notice of exercise of the option of repayment having
been given and the Debt Securities so to be repaid having been surrendered as aforesaid, such Debt Securities shall, unless purchased
in accordance with Section 1304, on the Repayment Date become due and payable at the price therein specified and from and after the
Repayment Date such Debt Securities shall cease to bear interest and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided above, shall be void, unless the Company shall default
in the payment of such price in which case the Company shall continue to be obligated for the principal amount of such Debt Securities
and shall be obligated to pay interest on such principal amount at the rate borne by such Debt Securities from time to time until payment
in full of such principal amount.
Article Fourteen
Meetings of Holders of Debt Securities
Section 1401. Purposes
for Which Meetings May Be Called.
If Debt Securities of a series are issuable in
whole or in part as Bearer Securities, a meeting of Holders of Debt Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of Debt Securities of such series.
Section 1402. Call,
Notice and Place of Meetings.
(a) The
Trustee may at any time call a meeting of Holders of Debt Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Debt Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Debt Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Debt Securities of
such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City
of New York, or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection
(a) of this Section.
Section 1403. Persons
Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Debt Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Debt Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Debt Securities
of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 1404. Quorum;
Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of a series shall constitute a quorum for a meeting of Holders of Debt Securities of such series.
In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of this reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the Outstanding Debt Securities of such series which shall constitute
a quorum.
Except as limited by the proviso to Section 902,
any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only
by the affirmative vote of the Holders of majority in principal amount of the Outstanding Debt Securities of that series, provided
however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance with this Section shall be binding on all the Holders
of Debt Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1405. Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders
of Debt Securities of such series in regard to proof of the holding of Debt Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Debt Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in Section 104 or, in the case of Bearer Securities, by
having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104
to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1402(b), in which case the Company or the Holders of Debt
Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson
and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Debt Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount (or
the equivalent in Euro, any other composite currency or a Foreign Currency) of Debt Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in respect of any Debt Security challenged as not Outstanding
and ruled by the chairperson of the meeting not to be Outstanding. The chairperson of the meeting shall have no right to vote, except
as a Holder of a Debt Security of such series or proxy.
(d) Any
meeting of Holders of Debt Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1406. Counting
Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders of Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of
Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Debt
Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of
each meeting of Holders of Debt Securities of any series shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in
Section 1402 and, if applicable, Section 1401. Each copy shall be signed and verified by the affidavits of the permanent chairperson
and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Article Fifteen
Defeasance
Section 1501. Termination
of Company’s Obligations.
If this Section 1501 is specified, as contemplated
by Section 301, to be applicable to any series of Debt Securities and if the Company deposits irrevocably in trust with the Trustee
money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal
and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee,
without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal of (and premium, if any)
or interest when due on the Debt Securities of such series and any coupons appertaining thereto and any mandatory sinking fund, repayment
or analogous payments thereon on the scheduled due dates therefor at the Stated Maturity thereof, the Company’s obligations under
any covenant determined pursuant to Section 301 to be subject to this Section shall terminate with respect to the Debt Securities
of the series for which such deposit was made; provided, however, that (i) no Event of Default with respect to the Debt Securities
of such series under Section 501(5) or 501(6) or event that with notice or lapse of time or both would constitute such
an Event of Default shall have occurred and be continuing on such date, (ii) such deposit will not result in a breach of, or constitute
a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, and (iii) such
termination shall not relieve the Company of its obligations under the Debt Securities of such series and this Indenture to pay when due
the principal of (and premium, if any) and interest and additional amounts on such Debt Securities and any coupons appertaining thereto
if such Debt Securities or coupons are not paid (or payment is not provided for) when due from the money and Eligible Instruments (and
the proceeds thereof) so deposited.
It shall be a condition to the deposit of cash
and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of this Section with
respect to the Debt Securities of any series under any covenant determined pursuant to Section 301 to be subject to this Section that
the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such series
and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and termination and (b) such Holders (and future Holders) will be subject to tax in the same amount, manner and timing as if such
deposit and termination had not occurred, (ii) an Officers’ Certificate to the effect that under the laws in effect on the
date such money and/or Eligible Instruments are deposited with the Trustee, the amount thereof will be sufficient, after payment of all
Federal, state and local taxes in respect thereof payable by the Trustee, to pay principal (and premium, if any) and interest when due
on the Debt Securities of such series and any coupons appertaining thereto; and (iii) an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated in this Section have
been complied with.
It shall be an additional condition to the deposit
of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of this Section under
any covenant determined pursuant to Section 301 to be subject to this Section, with respect to the Debt Securities of any series
then listed, that the Company deliver an Opinion of Counsel that the Debt Securities of such series will not be delisted as a result of
such deposit and termination.
After a deposit as provided herein, the Trustee
shall, upon Company Request, acknowledge in writing the discharge of the Company’s obligations pursuant to the provisions of this
Section with respect to the Debt Securities of such series under any covenant determined pursuant to Section 301 to be subject
to this Section.
Section 1502. Repayment
to Company.
The Trustee and any Paying Agent shall promptly
pay to the Company upon Company Request any money or Eligible Instruments not required for the payment of the principal of (and premium,
if any) and interest on the Debt Securities of any series and any related coupons for which money or Eligible Instruments have been deposited
pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent shall promptly
pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any) and interest that remains
unclaimed for two years after the Maturity of the Debt Securities for which a deposit has been made pursuant to Section 1501. After
such payment to the Company, the Holders of the Debt Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
Section 1503. Indemnity
for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the deposited Eligible Instruments or the principal or interest received
on such Eligible Instruments.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
| |
TACTILE SYSTEMS TECHNOLOGY, INC. |
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| |
By |
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Its |
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[ ] |
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By |
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Its |
|
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership
by a
Non-United States Person or by Certain Other Persons]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated
as of [ ] (the “Indenture”) between Tactile Systems Technology, Inc. and [ ] (the “Trustee”), covering the
above-captioned Debt Securities. This is to certify that as of the date hereof, principal amount of Debt Securities credited to you for
our account (i) is owned by persons that are not United States Persons, as defined below; (ii) is owned by United States Persons
that are (a) foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
(“financial institutions”) purchasing for their own account or for resale, or (b) United States Persons who acquired
the Debt Securities through foreign branches of United States financial institutions and who hold the Debt Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution encloses
herewith a certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
which United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of resale directly or indirectly to a United States Person
or to a person within the United States or its possessions.
[Insert if certificate does not relate to an interest
payment—We undertake to advise you by tested telex followed by written confirmation if the above statement as to beneficial ownership
is not correct on the date of delivery of the above-captioned Debt Securities in bearer form as to all of such Debt Securities with respect
to such of said Debt Securities as then appear in your books as being held for our account.] We understand that this certificate is required
in connection with United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof to any interested
party in any administrative or legal proceedings with respect to the matters covered by this certificate. “United States Person”
shall mean a citizen or resident of the United States of America (including the District of Columbia), a corporation, partnership or other
entity created or organized in or under the laws of the United States or any political subdivision thereof or an estate or trust that
is subject to United States Federal income taxation regardless of the source of its income.
[This certificate excepts and does not relate to
principal amount of Debt Securities credited to you for our account and to which we are not now able to make the certification set forth
above. We understand that definitive Debt Securities cannot be delivered and interest cannot be paid until we are able to so certify with
respect to such principal amount of Debt Securities.]*
| [To be dated on or after (the date determined as provided in the Indenture)] |
|
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|
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[Name of Person Entitled to Receive Bearer Security] |
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|
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(Authorized Signatory) |
*Delete if inappropriate
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of [ ] (the “Indenture”), between Tactile Systems Technology, Inc.
and [ ], relating to the offering of the above-captioned Debt Securities (the “Debt Securities”). Unless herein defined, terms
used herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch
located outside the United States of a United States securities clearing organization, bank or other financial institution (as defined
in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds customers’ securities in the ordinary course of its trade
or business and agrees, and authorizes you to advise the issuer or the issuer’s agent, that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder and is not purchasing
for resale directly or indirectly to a United States Person or to a person within the United States or its possessions. We undertake to
advise you by tested telex followed by written confirmation if the statement in the immediately preceding sentence is not correct on the
date of delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate is required
in connection with the United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof to any interested
party in any administrative or legal proceedings with respect to the matters covered by this certificate.
| [To be dated on or after (the date determined as provided in the Indenture)] |
|
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[Name of Person Entitled to Receive Bearer Security] |
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(Authorized Signatory) |
EXHIBIT B
[Form of Certificate to be Given by Euroclear
and Clearstream
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of Debt Securities to be delivered]
We refer to that portion, , of the Global Security
representing the above-captioned issue [which is herewith submitted to be exchanged for definitive Debt Securities]* [for which we are
seeking to obtain payment of interest]* (the “Submitted Portion”). This is to certify, pursuant to the Indenture dated as
of [ ] (the “Indenture”) between Tactile Systems Technology, Inc. and [ ] (the “Trustee”), that we have received
in writing, by tested telex or by electronic transmission from member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a Certificate of Beneficial Ownership by a Non-United States
Person or by Certain Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a United States Financial Institution,
authorizing us to inform the issuer or the issuer’s agent that it will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder]* substantially in the form of Exhibit A-1
[and A-2]* to the Indenture.
We hereby request that you deliver to the office
of in definitive Bearer Securities in the denominations on the attached Schedule A.
We further certify that as of the date hereof we
have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with
respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date hereof.
| |
[ |
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, as |
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Operator of the Euroclear System] |
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[Clearstream] |
*Delete if inappropriate.
Exhibit 4.4
TACTILE SYSTEMS TECHNOLOGY, INC.
TO
[ ]
Trustee
INDENTURE
Dated as of [ ]
Subordinated Debt Securities
Tactile Systems Technology, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of [ ]
| Trust Indenture Act Section |
|
Indenture Section |
| §310(a)(1) |
|
609 |
| (a)(2) |
|
609 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
609 |
| (b) |
|
608, 610 |
| §311(a) |
|
613 |
| (b) |
|
613 |
| §312(a) |
|
701, 702(a) |
| (b) |
|
702(b) |
| (c) |
|
702(c) |
| §313(a) |
|
703(a) |
| (b) |
|
703(a) |
| (c) |
|
703(a) |
| (d) |
|
703(b) |
| §314(a) |
|
704, 1005 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
102 |
| (c)(2) |
|
102 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
102 |
| §315(a) |
|
601 |
| (b) |
|
602 |
| (c) |
|
601 |
| (d) |
|
601 |
| (e) |
|
514 |
| §316(a) |
|
101 |
| (a)(1)(A) |
|
104(h), 502, 512 |
| (a)(1)(B) |
|
104(h), 513 |
| (a)(2) |
|
Not Applicable |
| (b) |
|
508 |
| (c) |
|
104(h) |
| §317(a)(1) |
|
503 |
| (a)(2) |
|
504 |
| (b) |
|
1003 |
| §318(a) |
|
107 |
| (c) |
|
107 |
| |
|
|
Note: This reconciliation and tie shall
not, for any purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
| ARTICLE I. Definitions and Other Provisions of General Application |
1 |
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| 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 |
10 |
| Section 1.05 |
Notices, etc., to Trustee and Company |
12 |
| 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 |
14 |
| Section 1.13 |
Legal Holidays |
14 |
| Section 1.14 |
Counterparts |
15 |
| Section 1.15 |
Exemption from Individual Liability |
15 |
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| ARTICLE II. Debt Security Forms |
15 |
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| Section 2.01 |
Forms Generally |
15 |
| Section 2.02 |
Form of Trustee’s Certificate of Authentication |
16 |
| Section 2.03 |
Debt Securities in Global Form |
16 |
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|
| ARTICLE III. The Debt Securities |
17 |
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|
| Section 3.01 |
Amount Unlimited; Issuance in Series |
17 |
| Section 3.02 |
Denominations |
20 |
| Section 3.03 |
Execution, Authentication, Delivery and Dating |
20 |
| Section 3.04 |
Temporary Debt Securities |
22 |
| Section 3.05 |
Registration; Registration of Transfer and Exchange |
25 |
| Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Debt Securities |
28 |
| Section 3.07 |
Payment of Interest; Interest Rights Preserved |
29 |
| Section 3.08 |
Persons Deemed Owners |
31 |
| Section 3.09 |
Cancellation |
31 |
| Section 3.10 |
Computation of Interest |
32 |
| Section 3.11 |
Certification by a Person Entitled to Delivery of a Bearer Security |
32 |
| Section 3.12 |
Judgments |
32 |
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| ARTICLE IV. Satisfaction and Discharge |
33 |
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|
| Section 4.01 |
Satisfaction and Discharge of Indenture |
33 |
| Section 4.02 |
Application of Trust Money and Eligible Instruments |
34 |
| Section 4.03 |
Satisfaction, Discharge and Defeasance of Debt Securities of any Series |
35 |
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|
| ARTICLE V. Remedies |
37 |
| |
|
| Section 5.01 |
Events of Default |
37 |
| Section 5.02 |
Acceleration of Maturity; Rescission and Annulment |
38 |
| Section 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
39 |
| Section 5.04 |
Trustee May File Proofs of Claim |
40 |
| Section 5.05 |
Trustee May Enforce Claims without Possession of Debt Securities or Coupons |
41 |
| Section 5.06 |
Application of Money Collected |
41 |
| Section 5.07 |
Limitation on Suits |
42 |
| Section 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
42 |
| Section 5.09 |
Restoration of Rights and Remedies |
42 |
| Section 5.10 |
Rights and Remedies Cumulative |
43 |
| Section 5.11 |
Delay or Omission Not Waiver |
43 |
| Section 5.12 |
Control by Holders of Debt Securities |
43 |
| Section 5.13 |
Waiver of Past Defaults |
43 |
| Section 5.14 |
Undertaking for Costs |
44 |
| Section 5.15 |
Waiver of Stay or Extension Laws |
44 |
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| ARTICLE VI. The Trustee |
44 |
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|
| Section 6.01 |
Certain Duties and Responsibilities |
44 |
| Section 6.02 |
Notice of Default |
45 |
| Section 6.03 |
Certain Rights of Trustee |
46 |
| Section 6.04 |
Not Responsible for Recitals or Issuance of Debt Securities |
47 |
| Section 6.05 |
May Hold Debt Securities or Coupons |
47 |
| Section 6.06 |
Money Held in Trust |
47 |
| Section 6.07 |
Compensation and Reimbursement |
47 |
| Section 6.08 |
Disqualification; Conflicting Interests |
48 |
| Section 6.09 |
Corporate Trustee Required; Eligibility |
48 |
| Section 6.10 |
Resignation and Removal; Appointment of Successor |
49 |
| Section 6.11 |
Acceptance of Appointment by Successor |
50 |
| Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
51 |
| Section 6.13 |
Preferential Collection of Claims Against Company |
52 |
| Section 6.14 |
Authenticating Agent |
52 |
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| ARTICLE VII. Holders’ Lists and Reports By Trustee and Company |
54 |
| |
|
| Section 7.01 |
Company to Furnish Trustee Names and Addresses of Holders |
54 |
| Section 7.02 |
Preservation of Information; Communications to Holders |
54 |
| Section 7.03 |
Reports by Trustee |
54 |
| Section 7.04 |
Reports by Company |
55 |
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|
| ARTICLE VIII. Consolidation, Merger, Conveyance, Transfer or Lease |
55 |
| |
|
| Section 8.01 |
Company May Consolidate, etc. Only on Certain Terms |
55 |
| Section 8.02 |
Successor Corporation Substituted |
56 |
| |
|
| ARTICLE IX. Supplemental Indentures |
56 |
| |
|
| Section 9.01 |
Supplemental Indentures without Consent of Holders |
56 |
| Section 9.02 |
Supplemental Indentures with Consent of Holders |
57 |
| Section 9.03 |
Execution of Supplemental Indentures |
58 |
| Section 9.04 |
Effect of Supplemental Indentures |
59 |
| Section 9.05 |
Conformity with Trust Indenture Act |
59 |
| Section 9.06 |
Reference in Debt Securities to Supplemental Indentures |
59 |
| |
|
| ARTICLE X. Covenants |
59 |
| |
|
| Section 10.01 |
Payment of Principal, Premium and Interest |
59 |
| Section 10.02 |
Maintenance of Office or Agency |
60 |
| Section 10.03 |
Money for Debt Securities Payments to Be Held in Trust |
60 |
| Section 10.04 |
Payment of Additional Amounts |
62 |
| Section 10.05 |
Officers’ Certificate as to Default |
63 |
| Section 10.06 |
Waiver of Certain Covenants |
63 |
| |
|
| ARTICLE XI. Redemption of Debt Securities |
63 |
| |
|
| Section 11.01 |
Applicability of Article |
63 |
| Section 11.02 |
Election to Redeem; Notice to Trustee |
63 |
| Section 11.03 |
Selection by Trustee of Debt Securities to be Redeemed |
64 |
| Section 11.04 |
Notice of Redemption |
64 |
| Section 11.05 |
Deposit of Redemption Price |
65 |
| Section 11.06 |
Debt Securities Payable on Redemption Date |
65 |
| Section 11.07 |
Debt Securities Redeemed in Part |
66 |
| |
|
| ARTICLE XII. Sinking Funds |
66 |
| |
|
| Section 12.01 |
Applicability of Article |
66 |
| Section 12.02 |
Satisfaction of Sinking Fund Payments with Debt Securities |
67 |
| Section 12.03 |
Redemption of Debt Securities for Sinking Fund |
67 |
| |
|
| ARTICLE XIII. Repayment at the Option of Holders |
67 |
| |
|
| Section 13.01 |
Applicability of Article |
67 |
| Section 13.02 |
Repayment of Debt Securities |
68 |
| Section 13.03 |
Exercise of Option; Notice |
68 |
| Section 13.04 |
Election of Repayment by Remarketing Entities |
69 |
| Section 13.05 |
Securities Payable on the Repayment Date |
69 |
| |
|
| ARTICLE XIV. Meetings of Holders of Debt Securities |
69 |
| |
|
| Section 14.01 |
Purposes for Which Meetings May Be Called |
69 |
| Section 14.02 |
Call, Notice and Place of Meetings |
69 |
| Section 14.03 |
Persons Entitled to Vote at Meetings |
70 |
| Section 14.04 |
Quorum; Action |
70 |
| Section 14.05 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
71 |
| Section 14.06 |
Counting Votes and Recording Action of Meetings |
72 |
| |
|
| ARTICLE XV. Defeasance |
72 |
| |
|
| Section 15.01 |
Termination of Company’s Obligations |
72 |
| Section 15.02 |
Repayment to Company |
73 |
| Section 15.03 |
Indemnity for Eligible Instruments |
74 |
| |
|
| ARTICLE XVI. Subordination of Debt Securities |
74 |
| |
|
| Section 16.01 |
Debt Securities Subordinate to Senior Debt |
74 |
| Section 16.02 |
Trustee and Holders of Debt Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership
of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt |
76 |
| Section 16.03 |
Payment Permitted If No Default |
76 |
| Section 16.04 |
Trustee Not Charged with Knowledge of Prohibition |
77 |
| Section 16.05 |
Trustee to Effectuate Subordination |
77 |
| Section 16.06 |
Rights of Trustee as Holder of Senior Debt |
77 |
| Section 16.07 |
Article Applicable to Paying Agents |
77 |
| Section 16.08 |
Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt |
77 |
INDENTURE (the “Indenture”)
dated as of [ ], between TACTILE SYSTEMS TECHNOLOGY, INC., a Delaware corporation (hereinafter called the “Company”), having
its principal place of business at 3701 Wayzata Blvd, Suite 300, Minneapolis, MN 55416, and [ ], (hereinafter called the “Trustee”),
a national banking association duly organized and validly existing under the laws of the United States of America having its Corporate
Trust Office at [ ].
RECITALS OF THE COMPANY
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated debentures, notes, bonds
and other evidences of indebtedness (herein called the “Debt Securities”).
All things necessary have
been done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of
the premises and the purchase of the Debt Securities of any series created and issued on or after the date hereof by the Holders thereof,
it is mutually covenanted and agreed for the benefit of all Holders of such Debt Securities or of any such series, as follows:
ARTICLE
I.
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:
(1)
the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture Act,
either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section
905, have the meanings assigned to them therein;
(3) 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 in the United States at the
date of such computation; and
(4) 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.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act” when used
with respect to any Holder has the meaning specified in Section 104.
“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.
“Authorized Newspaper”
means a newspaper in an official language of the country of publication or in the English language customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors.
“Bearer Security”
means any Debt Security established pursuant to Section 201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Debt Security in global bearer form.
“Board of Directors”
means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect
hereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of
this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Debt Securities
and the forms and terms thereof), such action may be taken by any committee of the Board of the Company or any officer or employee of
the Company authorized to take such action by a Board Resolution.
“Business Day”,
when used with respect to any Place of Payment, means any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to
close.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
“Clearstream “
means Clearstream Banking S.A.
“Commission” means
the Securities and Exchange Commission, as 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 on such date.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
and “Company Order” mean, respectively, except as otherwise provided in this Indenture, a written request or order signed
in the name of the Company by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President (any references
to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a
number or word or words added before or after the title “Vice President”), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company or by another officer of the Company duly authorized to sign
by a Board Resolution, and delivered to the Trustee.
“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office
at the date of original execution of this Indenture is located at [ ].
The term “corporation”
includes corporations, associations, companies and business trusts.
The term “coupon”
means any interest coupon appertaining to a Bearer Security.
“Debt Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered
under this Indenture.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary” means,
with respect to the Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary hereunder, and if at any
time there is more than one such Person, “Depositary” as used with respect to the Debt Securities of any such series shall
mean the Depositary with respect to the Debt Securities of that series.
“Designated Currency”
has the meaning specified in Section 312.
“Dollar” or “$”
means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Eligible Instruments”
means monetary assets, money market instruments and securities that are payable in Dollars only and essentially risk free as to collection
of principal and interest, including U.S. Government Obligations.
“Euro” means the
single currency of the European Monetary Union as defined under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty and under
EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any successor European legislation from time to time.
“Euroclear” means
Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exchange Rate”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Agent”
shall have the meaning specified as contemplated in Section 301.
“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and the amounts payable in Dollars and Foreign Currencies in
respect of the principal of (and premium, if any) and interest on Debt Securities denominated in Euro, any other composite currency or
Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice President, the Treasurer
or any Assistant Treasurer of the Company or the Exchange Rate Agent appointed pursuant to Section 301, and delivered to the Trustee.
“Foreign Currency”
means a currency issued by the government of any country other than the United States of America.
“GAAP” means generally
accepted accounting principles in the United States as used by the Financial Accounting Standards Board and/or the American Institute
of Certified Public Accountants, consistently applied.
“Global Exchange Agent”
has the meaning specified in Section 304.
“Global Exchange Date”
has the meaning specified in Section 304.
“Global Security”
means a Debt Security issued to evidence all or part of a series of Debt Securities in accordance with Section 303.
“Holder”, with
respect to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
“Indebtedness”
means, with respect to any specified Person, all obligations of such Person, whether or not contingent:
(i)(a) for borrowed
money (including, but not limited to, any indebtedness secured by a security interest, mortgage or other lien on the assets of such Person
that is (1) given to secure all or part of the purchase price of property subject thereto, whether given to the vendor of such property
or to another, or (2) existing on property at the time of acquisition thereof), (b) evidenced by a note, debenture, bond or other similar
written instrument, (c) under a lease required to be capitalized on the balance sheet of the lessee under GAAP, or under any lease or
related document (including a purchase agreement) that provides that such Person is contractually obligated to purchase or cause a third
party to purchase and thereby guarantee a minimum residual value of the lease property to the lessor and such Person’s obligations
under such lease or related document to purchase or to cause a third party to purchase such leased property, (d) in respect of letters
of credit, bank guarantees or bankers’ acceptances (including reimbursement obligations with respect to any of the foregoing), (e)
obligations secured by a mortgage, pledge, lien, charge or similar encumbrance to which the property or assets of such Person are subject,
whether or not the obligation secured thereby shall have been assumed by or shall otherwise be such Person’s legal liability, (f)
in respect of the balance of deferred and unpaid purchase price of any property or assets, and (g) under interest rate or currency swap
agreements, cap, floor and collar agreements, spot and forward contracts and similar agreements and arrangements;
(ii) with respect
to any obligation of others of the type described in the preceding clause (i) or under clause (iii) below assumed by or guaranteed in
any manner by such Person (including, without limitation, through “take or pay” and similar arrangements), contingent or otherwise
(and the obligations of such Person under any such assumptions, guarantees or other such arrangements); and
(iii) any and all
deferrals, renewals, extensions, refinancing and refunding of, or amendments, modifications or supplements to, any of the foregoing.
The amount of any Indebtedness outstanding as
of any date shall be (i) the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and (ii) the
principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
“Indenture” means
this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities established as contemplated by Section 301.
The term “interest”,
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date”,
with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security.
“Maturity”, when
used with respect to any Debt Security, means the date on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for
the Company, or who may be other counsel, which is delivered to the Trustee.
“Original Issue Discount
Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”,
when used with respect to Debt Securities means, as of the date of determination, all Debt Securities theretofore authenticated and delivered
under this Indenture, except:
(i)1 Debt
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii)
Debt Securities or portions thereof for whose payment or redemption money or Eligible Instruments in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Debt Securities and any coupons appertaining thereto; provided,
however, that if such Debt 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; and
(iii)
Debt Securities in exchange for or in lieu of which other Debt Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining
whether the Holders of the requisite principal amount of Debt Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Company or any other obligor upon the Debt Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Debt Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Debt Securities and that the pledgee is not the Company or any other obligor upon the Debt Securities
or any Affiliate of the Company or of such other obligor.
“Paying Agent”
means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
“Person” means
any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“Place of Payment”,
when used with respect to the Debt Securities of any series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
“ranking junior to the
Debt Securities”, when used with respect to any obligation of the Company shall mean any obligation of the Company which (a) ranks
junior to and not equally with or prior to the Debt Securities (or any other obligations of the Company ranking on a parity with the Debt
Securities) in right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph in
Section 1601 or (b) is specifically designated as ranking junior to the Debt Securities by express provision in the instrument creating
or evidencing such obligation. The securing of any obligations of the Company, otherwise ranking junior to the Debt Securities, shall
be deemed to prevent such obligations from constituting obligations ranking junior to the Debt Securities.
“ranking on a parity
with the Debt Securities”, when used with respect to any obligation of the Company shall mean any obligation of the Company which
(a) ranks equally with and not prior to the Debt Securities in right of payment upon the happening of any event of the kind specified
in the first sentence of the second paragraph in Section 1601 or (b) is specifically designated as ranking on a parity with the Debt Securities
by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Company, otherwise
ranking on a parity with the Debt Securities, shall not be deemed to prevent such obligations from constituting obligations ranking on
a parity with the Debt Securities.
“Redemption Date”,
when used with respect to any Debt 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 Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security Register.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose
as contemplated by Section 301.
“Remarketing Entity”,
when used with respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity,
means any person designated by the Company to purchase any such Debt Securities.
“Repayment Date”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
“Repayment Price”,
when used with respect to any Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which
it is to be repaid pursuant to this Indenture.
“Responsible Officer”
when used with respect to the Trustee, means any vice president, any assistant vice president, any senior trust officer or assistant trust
officer, any trust officer, or any other officer associated with the corporate trust department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular
subject.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Debt”
means the principal of, premium, if any, and interest on, rent under, and any other amounts payable on or in respect of any Indebtedness
of the Company (including, without limitation, any principal, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness in respect of such Indebtedness and any interest accruing
after the filing of a petition by or against the Company under any Bankruptcy Law, whether or not allowed as a claim after such filing
in any proceeding under such Bankruptcy Law), whether outstanding on the date of this Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company (including all deferrals, renewals, extensions, refinancing or refunding of, or amendments,
modifications or supplements to the foregoing); provided, however, that Senior Debt does not include:
(i) any
liability for Federal, state, local or other taxes owed or owing by the Company;
(ii)
Indebtedness of the Company to any Subsidiary of the Company;
(iii)
trade payables and accrued expenses (including, without limitation, accrued compensation) of the Company for goods, services or materials
purchased or provided in the ordinary course of business, and
(iv)
any particular Indebtedness in which the instrument creating or evidencing the same expressly provides that such Indebtedness shall not
be senior in right of payment to, or is pari passu with, or is subordinated or junior to, the Debt Securities.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Debt Security or any installment of interest thereon, means the date specified in such Debt Security or
a coupon representing such installment of interest as the fixed date on which the principal of such Debt Security or such installment
is due and payable.
“Subsidiary” means,
in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency within the control of such Person to satisfy)
to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly,
by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person, or (iii) one or more Subsidiaries of such Person.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided
in Section 905.
“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 Debt
Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
“United States”
means the United States of America (including the District of Columbia) and its possessions.
“United States Alien”
means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“U.S. Government Obligations”
means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt.
Section 1.02
Compliance Certificates and Opinions.
Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if so
requested by the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3)
a statement that, in the opinion of 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
(4)
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 they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, 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 a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters
are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04
Acts of Holders.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If Debt Securities of a series are issuable in whole or in part as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders may, alternatively, be embodied in and evidenced by the record of Holders of Debt Securities voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of Debt Securities duly called and held in accordance with
the provisions of Article Fourteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person
of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Debt Securities shall be proved
in the manner provided in Section 1406.
(b)
The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee
deems sufficient.
(c)
The ownership of Registered Securities shall be proved by the Security Register.
(d)
The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer Securities in the amount and with the serial numbers therein
described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
(e)
The fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal
amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the
same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(f)
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind
every future holder of the same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Debt Security.
(g) For purposes of determining the principal amount of Outstanding Debt Securities of any series the Holders of which are required,
requested or permitted to give any request, demand, authorization, direction, notice, consent, waiver or take any other Act under this
Indenture, (i) each Original Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could
be declared to be due and payable pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to
the Trustee and, where it is hereby expressly required, to the Company, such Act by Holders of the required aggregate principal amount
of the Outstanding Debt Securities of such series and (ii) each Debt Security denominated in a Foreign Currency or composite currency
shall be deemed to have the principal amount determined by the Exchange Rate Agent by converting the principal amount of such Debt Security
in the currency in which such Debt Security is denominated into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series (or, if there is no such rate on such date, such rate on the date determined as specified as contemplated
in Section 301).
(h)
The Company may set a record date for purposes of determining the identity of Holders of Debt Securities of any series entitled
to vote or consent to any action by vote or consent authorized or permitted by Section 512 or Section 513. Such record date shall be the
later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of such Debt Securities
furnished to the Trustee pursuant to Section 701 prior to such solicitation.
Section 1.05
Notices, etc., to Trustee and Company.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing (which may be via original or facsimile) to or with the Trustee at its Corporate Trust Office
and which shall be deemed delivered when actually received by a Responsible Officer of the Trustee, or
(2)
the Company 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 addressed to the attention of its Secretary at the address of its
principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee
by the Company.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent to the
transmission thereof, 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. 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 or directions notwithstanding such instructions or directions conflict or are inconsistent
with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party
providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid,
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 1.06
Notice to Holders; Waiver.
Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given to Holders
of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such
event, at such Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and (2) such notice shall be sufficiently given to Holders of Bearer Securities
by publication thereof in an Authorized Newspaper in The City of New York and, if the Debt Securities of such series are then listed on
any stock exchange outside the United States and such stock exchange shall so require, in any other required city outside the United States
or, if not practicable, in Europe on a Business Day at least twice, the first such publication to be not later than the latest date and
not earlier than the earliest date prescribed for the giving of such notice.
In case, by reason of the
suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice
of any event to Holders of Registered Securities when said notice is required to be given pursuant to any provision of this Indenture
or of the Debt Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders of Registered Securities is to be given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of
such notice with respect to other Holders of Registered Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case, by reason of the
suspension of publication of any Authorized Newspaper, or by reason of any other cause, it shall be impossible or impracticable to make
publication of any notice to Holders of Bearer Securities as provided above, then such method of publication or notification as shall
be made with the approval of the Trustee shall constitute a sufficient publication of such notice. Neither failure to give notice by publication
to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice
mailed to Holders of Registered Securities as provided above.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization,
direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country of publication.
Section 1.07
Conflict with Trust Indenture Act.
If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
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 shall bind its successors and assigns, whether so expressed or not.
Section 1.10
Separability Clause.
In case any provision in this
Indenture or in the Debt Securities or any coupons 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 Debt Securities or any coupons, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12
Governing Law.
This Indenture and the Debt
Securities and any coupons 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, Repayment Date or Stated Maturity of any Debt Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debt Securities or coupons) 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, Redemption Date, Repayment Date or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity, as the case may be.
Section 1.14
Counterparts.
This Indenture 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
but one and the same Indenture.
Section 1.15
Exemption from Individual Liability.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Debt Security or any coupon, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or any coupon or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or any coupon
or implied, therefrom are hereby expressly waived and released as a condition of and as a consideration for, the execution of this Indenture
and the issue of such Debt Securities.
ARTICLE
II.
Debt Security Forms
Section 2.01
Forms Generally.
The Registered Securities,
if any, and the Bearer Securities and related coupons, if any, of each series shall be in substantially the form (including temporary
or permanent global form) as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required
to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such Debt
Securities or coupons, as evidenced by their signatures on the Debt Securities or coupons. If the form of Debt Securities of any series
or coupons (including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Debt Securities or
coupons.
Unless otherwise specified
as contemplated by Section 301, Debt Securities in bearer form other than Debt Securities in temporary or permanent global form shall
have coupons attached.
The definitive Debt Securities
and coupons, if any, 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 Debt Securities, as evidenced by the execution of such Debt Securities and coupons.
Section 2.02
Form of Trustee’s Certificate of Authentication.
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
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[ ], |
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as Trustee |
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By: |
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Authorized Signatory |
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Dated: |
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Section 2.03
Debt Securities in Global Form.
If Debt Securities of a series
are issuable in whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of Section
301 and the provisions of Section 302, such Global Security shall represent such of the outstanding Debt Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Debt Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding
Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last
sentence of Section 303(g) shall apply to any Debt Securities represented by a Debt Security in global form if such Debt Security was
never issued and sold by the Company and the Company delivers to the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with respect to the reduction in the principal
amount of Debt Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303(g).
Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
ARTICLE
III.
The Debt Securities
Section 3.01
Amount Unlimited; Issuance in Series.
The aggregate principal amount
of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be
issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the
title of the Debt Securities of the series;
(2) the
limit, if any, upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any Debt Securities which,
pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3)
the date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(4)
the rate or rates, if any, at which the Debt Securities of the series shall bear interest, or the method or methods by which such rate
or rates may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances,
if any, in which the Company may defer interest payments;
(5)
the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Debt Securities
of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Debt Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served and where notices to Holders pursuant to Section 106 will be published;
(6)
if applicable, the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(7) the
obligation, if any, of the Company to redeem, repay or purchase Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether
Debt Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether Debt Securities of the series
are to be issuable with or without coupons or both and, in the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first Debt Security of such series of like tenor and term to be issued;
(9) whether
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the
Global Exchange Date and Global Exchange Agent;
(10)
if Debt Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Debt Securities and whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in
respect of an Interest Payment Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion
of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon
which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such
Interest Payment Date if other than as provided in this Article Three;
(11)
whether, and under what conditions, additional amounts will be payable to Holders of Debt Securities of the series pursuant to Section
1004;
(12)
the denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) If
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) the
currency or currencies of denomination of the Debt Securities of any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the Euro, and, if any such currency of denomination is a composite currency other than the Euro,
the agency or organization, if any, responsible for overseeing such composite currency;
(15) the
currency or currencies in which payment of the principal of (and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and premium, if any) or the interest on Registered Securities, at
the election of each of the Holders thereof, may also be payable and the periods within which and the terms and conditions upon which
such election is to be made, and the Exchange Rate and the person who shall be the Exchange Rate Agent for the Debt Securities of such
series;
(16) if
payments of principal of (and premium, if any) or interest on the Debt Securities of the series are to be made in a Foreign Currency other
than the currency in which such Debt Securities are denominated, the manner in which the Exchange Rate with respect to such payments shall
be determined;
(17)
any Events of Default with respect to Debt Securities of such series, if not set forth herein;
(18)
any other covenant or warranty included for the benefit of the Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or any other covenant or warranty included for the benefit of
Debt Securities of the series in lieu of any covenant or warranty set forth herein for the benefit of Debt Securities of all series, or
any provision that any covenant or warranty set forth herein for the benefit of Debt Securities of all series shall not be for the benefit
of Debt Securities of such series, or any combination of such covenants, warranties or provisions and whether the provisions of Section
1006 will not apply such covenants and warranties;
(19)
the terms and conditions, if any, pursuant to which the Company’s obligations under this Indenture may be terminated through the
deposit of money or Eligible Instruments as provided in Articles Four and Fifteen;
(20)
the Person or Persons who shall be Security Registrar for the Debt Securities of such series if other than the Trustee, and the place
or places where the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent
or Agents, if other than the Trustee; and
(21)
any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any
one series and the coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers’ Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series
of Debt Securities are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.
Section 3.02
Denominations.
Debt Securities of each series
shall be issuable in such form and denominations as shall be specified in the form of Debt Security for such series approved or established
pursuant to Section 201 or in the Officers’ Certificate delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such series, if any, shall be issuable in denominations of $5,000.
Section 3.03
Execution, Authentication, Delivery and Dating.
(a)
The Debt Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries
under its corporate seal reproduced thereon. The signature of any of these officers on the Debt Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of an authorized officer of the Company.
Debt Securities and coupons
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such
Debt Securities or coupons of any series or did not hold such offices at the date of such Debt Securities or coupons.
(b)
At any time and from time to time after the execution and delivery of this Indenture, Debt Securities of any series may be executed
by the Company and delivered to the Trustee for authentication, and, except as otherwise provided in this Article Three, shall thereupon
be authenticated and delivered by the Trustee upon Company Order, without any further action by the Company; provided, however,
that, in connection with its original issuance, a Bearer Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii)
and (iv), unless such certification shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company has
no reason to know that such certification is false.
To the extent authorized in
or pursuant to a Board Resolution and set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, such written Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal amounts, rates of interest, maturity dates and other matters contemplated
by such Board Resolution and Officers’ Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing
and delivering the first Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the
Trustee (i) the certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture in relation to any such Debt Securities, the Trustee shall
be entitled to receive, prior to the initial authentication of such Debt Securities, and (subject to Section 601) shall be fully protected
in relying upon:
(i) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified
by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers’ Certificate setting forth the form and terms of the Debt Securities of such series and coupons, if any, pursuant
to Sections 201 and 301 and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Debt
Securities have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any, has been established in or pursuant to a Board Resolution or by a supplemental
indenture as permitted by Section 201 in conformity with the provisions of this Indenture;
(B) that the terms
of such Debt Securities and coupons, if any, have been established in or pursuant to a Board Resolution or by a supplemental indenture
as permitted by Section 301 in conformity with the provisions of this Indenture; and
(C) that such Debt
Securities and coupons, if any, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally and the application of general principles of equity and except further as enforcement
thereof may be limited by (i) requirements that a claim with respect to any Debt Securities denominated other than in Dollars (or a Foreign
Currency or currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to limit, delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
(c)
If the Company shall establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part
in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and
the Company Order with respect to such series, authenticate and deliver one or more Global Securities in permanent or temporary form that
(i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Debt Securities
of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary’s instructions.
(d)
The Trustee shall have the right to decline to authenticate and deliver any Debt Securities under this Section 303 if the issuance
of such Debt Securities will adversely affect the Trustee’s own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e)
If all the Debt Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel
at the time of issuance of each Debt Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at
or prior to the time of the first issuance of Debt Securities of such series.
(f) Each
Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
(g)
No Debt Security or coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein
executed by the Trustee, and such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt
Security has been duly authenticated and delivered hereunder. Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all related coupons for interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security to the Trustee for cancellation as provided in Section 309 together with
a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Debt
Security or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
(h)
Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation
and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute
or regulation.
Section 3.04
Temporary Debt Securities.
(a)
Pending the preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of documents required
by Sections 301 and 303, together with a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the
definitive Debt Securities in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons
or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such
Debt Securities may determine, as evidenced by their signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global form, representing all or any part of the Outstanding Debt
Securities of such series.
(b)
Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form, if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt
Securities of such series, the related temporary Debt Securities shall be exchangeable for such definitive Debt Securities upon surrender
of the temporary Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any series (accompanied, if applicable,
by all unmatured coupons and all matured coupons in default appertaining thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Debt Securities of the same series of like tenor and terms and
of authorized denominations; provided, however, that no Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise
provided pursuant to Section 301, be delivered to the Depositary for the benefit of Euroclear and Clearstream, for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the “Global Exchange Date”), the Company shall deliver definitive Debt Securities to the Trustee
or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Debt
Securities (the “Global Exchange Agent”), in an aggregate principal amount equal to the principal amount of such temporary
Global Security, executed by the Company. On or after the Global Exchange Date, such temporary Global Security shall be surrendered by
the Depositary to the Global Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant to Section 614, shall authenticate and deliver,
in exchange for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Debt Securities of the
same series of authorized denominations and of like tenor and terms as the portion of such temporary Global Security to be exchanged.
Upon any exchange of a part of such temporary Global Security for definitive Debt Securities, the portion of the principal amount and
any interest thereon so exchanged shall be endorsed by the Global Exchange Agent on a schedule to such temporary Global Security, whereupon
the principal amount and interest payable with respect to such temporary Global Security shall be reduced for all purposes by the amount
so exchanged and endorsed. The definitive Debt Securities to be delivered in exchange for any such temporary Global Security shall be
in bearer form, registered form, global registered form or global bearer form, or any combination thereof, as specified as contemplated
by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however,
that, in the case of the exchange of the temporary Global Security for definitive Bearer Securities (including a definitive Global Bearer
Security), upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate signed by Euroclear
as to the portion of such temporary Global Security held for its account then to be exchanged and a certificate signed by Clearstream
as to the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit B
to this Indenture, unless such certificate(s) shall have been provided earlier pursuant to section 304(b)(v) hereof; and provided,
further, that definitive Bearer Securities (including a definitive Global Bearer Security) shall be delivered in exchange for a portion
of a temporary Global Security only in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series in a temporary Global Security shall be exchanged for definitive
Debt Securities of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs Euroclear
or Clearstream, as the case may be, to request such exchange on such account holder’s behalf and, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities (including a definitive Global Bearer Security), unless such certificate(s)
shall have been provided earlier pursuant to Section 304(b)(v) hereof, the account holder delivers to Euroclear or Clearstream, as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier than 15 days
prior to the Global Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Global
Exchange Agent, any authenticating agent appointed for such series of Debt Securities and each Paying Agent. Unless otherwise specified
in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security,
except that a Person receiving definitive Debt Securities must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt Securities in person at the offices of Euroclear and Clearstream.
Definitive Debt Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be delivered
only outside the United States.
(v)
Until exchanged in full as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive Debt Securities of the same series and of like tenor and terms authenticated and
delivered hereunder, except that interest payable on a temporary Global Security on an Interest Payment Date shall be payable to Euroclear
and Clearstream on such Interest Payment Date only if there has been delivered by Euroclear and Clearstream to the Global Exchange Agent
a certificate or certificates in the form set forth in Exhibit B to this Indenture dated no earlier than the first Interest Payment Date,
for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no earlier than the first
Interest Payment Date. Any interest so received by Euroclear and Clearstream and not paid as herein provided prior to the Global Exchange
Date shall be returned to the Global Exchange Agent which, upon expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 1003.
Section 3.05
Registration; Registration of Transfer and Exchange.
The Company shall cause to
be kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305 and Section
1002, with respect to the Debt Securities of each series which are Registered Securities, a register (herein sometimes 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 Registered Securities and of transfers of Registered Securities. Pursuant to Section 301, the Company shall appoint,
with respect to Debt Securities of each series which are Registered Securities, a “Security Registrar” for the purpose of
registering such Debt Securities and transfers and exchanges of such Debt Securities as herein provided.
Upon surrender for registration
of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder,
Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination,
of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered Securities.
At the option of the Holder,
Registered Securities or Bearer Securities of any series may be issued in exchange for Bearer Securities (except as otherwise specified
as contemplated by Section 301 with respect to a Bearer Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon
or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall
be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor and terms after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Debt Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary
for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Debt Securities
of such series or if at any time the Depositary for the Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company’s election pursuant to Section 301(9) shall no longer be effective with respect to the Debt Securities
of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security
or Securities.
The Company may at any time
and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or Securities.
If specified by the Company
pursuant to Section 301 with respect to a series of Debt Securities, the Depositary for such series of Debt Securities may surrender a
Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without charge to any Holder,
(a)
to each Person specified by such Depositary a new Debt Security or Securities of the same series, of like tenor and terms and
of any authorized denominations as requested by such person in aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security; and
(b)
to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for
in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver Debt Securities (a) in
definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (b)
in definitive bearer form in authorized denominations, with coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be specified by the beneficial owner thereof, if the Debt Securities
of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further
that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
Upon the exchange of a Global
Security for Debt Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued
in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Securities to the persons in whose names such Debt Securities are so registered. The
Trustee shall deliver Bearer Securities issued in exchange for a Global Security pursuant to this Section to the persons, and in such
authorized denominations, as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and provided further
that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security
will be issued if the Company has reason to know that any such certificate is false.
All Debt Securities issued
upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security
presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No charge to any Holder shall
be made for any registration of transfer or exchange of Debt 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 transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made at the Company’s own expense or without expense
or without charge to the Holders.
The Company shall not be required
(i) to issue, register the transfer of or exchange Debt Securities of any particular series to be redeemed for a period of fifteen days
preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication,
the mailing of the relevant notice of redemption of Debt Securities of such series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of like tenor
and terms of that series, provided that such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein
to the contrary, the exchange of Bearer Securities into Registered Securities shall be subject to applicable laws and regulations in effect
at the time of exchange; neither the Company, the Trustee nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such exchanges the Company would suffer adverse consequences under
the United States Federal income tax laws and regulations then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such exchanges thereafter unless and until the Trustee receives a subsequent Company Order to the contrary.
The Company shall deliver copies of such Company Orders to the Security Registrar.
Section 3.06
Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt
Security or a Bearer Security with a mutilated coupon appertaining to it is surrendered to a Paying Agent outside the United States designated
by the Company, or, in the case of any Registered Security, to the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company and the
Trustee that such Debt Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains (with all related coupons not destroyed, lost or stolen)
or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor and terms and principal amount, bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen coupon appertains; provided, however, that
any such new Bearer Security will be delivered only in compliance with the conditions set forth in Section 305.
In case any such mutilated,
destroyed, lost or stolen Debt Security or coupon has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States; and provided, further, that, with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section 1004), shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new
Debt Security or coupons 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 the Trustee and printing expenses)
connected therewith.
Every new Debt Security of any
series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange
for a Bearer Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Debt Security and coupons, if any, shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt Securities of that series and their coupons, if any, 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 Debt Securities or coupons.
Section 3.07
Payment of Interest; Interest Rights Preserved.
Interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. At the option of the Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such Registered Security mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by wire transfer to an account in such currency designated by such Person
in writing not later than ten days prior to the date of such payment.
Any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by
virtue of his having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered 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 Registered Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money and/or, to the extent such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and providing no tax liability
will be imposed upon the Trustee or the Holder of such Registered Securities) will provide money in such amounts as will (together with
any money irrevocably deposited in trust with the Trustee, without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money and/or Eligible Instruments when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the 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 written notice of the proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish
the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business
on such Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the Security Register, 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered 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 (2).
In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
(2) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Registered 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 Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Subject to the limitations
set forth in Section 1002, the Holder of any coupon appertaining to a Bearer Security shall be entitled to receive the interest payable
on such coupon upon presentation and surrender of such coupon on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
Section 3.08
Persons Deemed Owners.
Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat
the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner
of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 3.09
Cancellation.
Unless otherwise provided
with respect to a series of Debt Securities, all Debt Securities and coupons surrendered for payment, redemption, repayment, transfer,
exchange or credit against any sinking fund payment pursuant to this Indenture, shall, if surrendered to the Company or any agent of the
Company, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation
any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and
all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or in
exchange for any Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled
Debt Securities and coupons held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled Debt Securities or coupons be returned to it.
Section 3.10
Computation of Interest.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 3.11
Certification by a Person Entitled to Delivery of a Bearer Security
Whenever any provision of
this Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such
certification shall be provided substantially in the form of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall not unreasonably be withheld.
Section 3.12
Judgments.
The Company may provide, pursuant
to Section 301, for the Debt Securities of any series that, to the fullest extent possible under applicable law and except as may otherwise
be specified as contemplated in Section 301, (a) the obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Debt Securities of any series and any related coupons in a Foreign Currency, composite currency or Dollars (the “Designated
Currency”) as may be specified pursuant to Section 301 is of the essence and that judgments in respect of such Debt Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of
(and premium, if any) and interest on such Debt Securities and any related coupons shall, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any
premium and cost of exchange) in the country of issue of the Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation
of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE
IV.
Satisfaction and Discharge
Section 4.01
Satisfaction and Discharge of Indenture.
This Indenture shall upon
Company Request cease to be of further effect, including the provisions of Article Sixteen hereof (except as to any surviving rights of
registration of transfer or exchange of Debt Securities herein expressly provided for and rights to receive payments of principal and
interest thereon and any right to receive additional amounts, as provided in Section 1004) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture when
(1)
either
(A)
all Debt Securities theretofore authenticated and delivered and all coupons appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305, (ii) Debt Securities and coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption or surrendered
for repayment and maturing after the relevant Redemption Date or Repayment Date, as appropriate, surrender of which has been waived as
provided in Section 1106 or 1303 and (iv) Debt Securities and coupons for whose payment money and/or Eligible Instruments have 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 1003) have been delivered to the Trustee cancelled or for cancellation; or
(B)
all such Debt Securities not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of and the Company,
in the case of (B)(i), (B)(ii) or (B)(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited
in trust with the Trustee, without investment) be sufficient to pay and discharge the entire indebtedness on such Debt Securities and
coupons of such series for principal (and premium, if any) and interest, and any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of such deposit (in the case of Debt Securities and coupons which have become
due and payable) or to the Stated Maturity or Redemption Date, if any, and all Repayment Dates (in the case of Debt Securities repayable
at the option of the Holders thereof); provided, however, that in the event a petition for relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law is filed with respect to the Company within 91 days after the deposit,
the obligations of the Company under the Indenture with respect to the Debt Securities of such series shall not be deemed terminated or
discharged, and in such event the Trustee shall be required to return the deposited money and Eligible Instruments then held by the Trustee
to the Company;
(2) the Company
has paid or caused to be paid all other sums payable hereunder by the Company; and
(3)
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 607 and, if money or Eligible Instruments shall have been
deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 4.02
Application of Trust Money and Eligible Instruments.
(a)
Subject to the provisions of the last paragraph of Section 1003, all money and Eligible Instruments deposited with the Trustee
pursuant to Section 401, 403 or 1501 shall be held in trust and such money and the principal and interest received on such Eligible Instruments
shall be applied by it, in accordance with the provisions of the Debt Securities, any coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose payment such money or Eligible Instruments have been deposited
with the Trustee.
(b)
The Trustee shall deliver or pay to the Company from time to time upon Company Request any Eligible Instruments or money held by
it as provided in Section 403 or 1501 which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required
to be deposited for the purpose for which such Eligible Instruments or money were deposited or received.
(c)
The Trustee shall deliver to the Company from time to time upon Company Request any Eligible Instruments held by it as provided
in Section 403 or 1501, provided that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Eligible
Instruments which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, would then be sufficient to satisfy the Company’s payment obligations in respect of the Debt Securities
in the manner contemplated by Section 403 or 1501.
Section 4.03
Satisfaction, Discharge and Defeasance of Debt Securities of any Series.
If this Section 403 is specified,
as contemplated by Section 301, to be applicable to Debt Securities of any series, then, notwithstanding Section 401, (i) the Company
shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Debt Securities of any such series and related
coupons; (ii) the provisions of this Indenture as it relates to such Outstanding Debt Securities and related coupons shall no longer be
in effect, including the provisions of Article Sixteen hereof (except as to the rights of Holders of Debt Securities to receive, from
the trust fund described in subparagraph (1) below, payment of (x) the principal of (and premium, if any) and any installment of principal
of (and premium, if any) or interest on such Debt Securities and related coupons on the Stated Maturity of such principal (and premium,
if any) or installment of principal (and premium, if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Debt Securities, the Company’s obligations with respect to such Debt Securities under Sections 304, 305,
306, 1002, 1003 and 1004 and the rights, powers, trusts, duties and immunities of the Trustee hereunder, including those under Section
607 hereof); and (iii) the Trustee, at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1)
either
(A)
with respect to all Outstanding Debt Securities of such series and related coupons, with reference to this Section 403, the Company
has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree
to comply with the provisions of this Section 403 applicable to it) irrevocably, as trust funds in trust, money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee or the Holders of such Debt Securities)
will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium, if any) and interest on the Outstanding Debt Securities of that
series and related coupons on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company prior
to the Stated Maturity thereof, and the Company shall have given irrevocable instructions to the Trustee to effect such redemption, at
the date fixed for such redemption pursuant to Article Eleven, and (ii) any mandatory sinking fund payments or analogous payments applicable
to Debt Securities of such series on the date on which such payments are due and payable in accordance with the terms of this Indenture
and of such Debt Securities; or
(B) the Company has
properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to
the Debt Securities of such series;
(2) the Company
has paid or caused to be paid all sums payable with respect to the Outstanding Debt Securities of such series and related coupons;
(3) such deposit
will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(4) no Event of
Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1),
(2), (3), (5) or (6) with respect to the Debt Securities of such series shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 501(5) or Section 501(6) or event which, with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 501(5) or Section 501(6) shall have occurred and be continuing on the 91st
day after such date; provided, however, that should that condition fail to be satisfied on or before such 91st
day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such deposit to the Company;
(5) the Company
has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Debt Securities and
related coupons of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred;
(6) if the Debt
Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Debt Securities to be delisted;
(7) such deposit
shall have been effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection
therewith pursuant to Section 301; and
(8) 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 the entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee
referred to in Section 403(1)(A) above shall be irrevocable and shall be made under the terms of an escrow or trust agreement in form
and substance satisfactory to the Trustee. If any Outstanding Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable
escrow or trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the
conditions set forth in this Section 403 with respect to all the Outstanding Debt Securities of any series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Debt Securities
of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law.
Notwithstanding the cessation,
termination and discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company under
this Indenture with respect to any series of Debt Securities, the obligations of the Company to the Trustee under Section 607, and the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to such series of Debt
Securities.
ARTICLE
V.
Remedies
Section 5.01
Events of Default.
“Event of Default”,
wherever used herein with respect to Debt 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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Debt Security of such series or a related coupon, if any, when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default
in the payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; or
(3)
default in the deposit of any sinking fund payment, when and as due by the terms of a Debt Security of such series; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of Debt Securities of a series other than such series), and continuance of such default or breach for
a period of 90 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 principal amount of the Outstanding Debt Securities of such 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
(5) the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6)
the commencement by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action; or
(7) any
other Event of Default, if any, provided with respect to Debt Securities of such series specified as contemplated by Section 301.
Section 5.02
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of and all accrued but unpaid interest on all the Debt Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount
(or specified amount) shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect
of the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration
of acceleration with respect to Debt 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
Debt Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if
(1)
the Company has paid or deposited with the Trustee a sum sufficient to pay
(A)
all overdue installments of interest on all Debt Securities of such series and any related coupons,
(B)
the principal of (and premium, if any, on) any Debt Securities of such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed therefor in such Debt Securities,
(C)
to the extent that payment of such interest is lawful, interest upon overdue installments of interest on each Debt Security and
any related coupons at the rate or rates prescribed therefor in such Debt Securities, and
(D)
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
(2)
all Events of Default with respect to Debt Securities of such series, other than the non-payment of the principal of Debt Securities of
such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
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:
(1) default
is made in the payment of any installment of interest on any Debt Security or any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Debt Securities and any related coupons, the amount then due and payable on such Debt
Securities and coupons for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates
prescribed therefor in such Debt 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
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other obligor upon such Debt Securities and coupons, wherever
situated.
If an Event of Default with
respect to Debt 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 Debt Securities of such series and any related coupons 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.
Section 5.04
Trustee May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings,
or any voluntary or involuntary case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related coupons or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,
(1) to
file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Debt Securities
of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(2)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian,
liquidator, sequestrator or other similar official in any such 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 607.
Nothing herein contained 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 Debt Securities or any coupons or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
| Section 5.05 | Trustee May Enforce Claims without Possession of Debt
Securities or Coupons. |
All rights of action and claims
under this Indenture or the Debt Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of
the Debt Securities or coupons 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 Debt Securities and coupons in respect of which such judgment has been recovered.
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 (and premium, if any) or interest, upon presentation of the Debt Securities or any coupons, or both,
as the case may be, 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 607;
SECOND: To the payment of
amounts then due and unpaid to the holders of Senior Debt, to the extent required by Article Sixteen;
THIRD: To the payment of the
amounts then due and unpaid for principal of (and premium, if any) and interest on the Debt Securities and any coupons, in respect of
which or for the benefit of which such money has been collected ratably, without preference or priority of any kind, according to the
amounts due and payable on such Debt Securities and any coupons for principal (and premium, if any) and interest, respectively. The Holders
of each series of Debt Securities denominated in Euro, any other composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Debt Securities and matured but unpaid interest on such series of Debt Securities in the currency
in which such series of Debt Securities is denominated into Dollars at the Exchange Rate as of the date of declaration of acceleration
of the Maturity of the Debt Securities; and
FOURTH: The balance, if any,
to the Company.
Section 5.07
Limitation on Suits.
No Holder of any Debt Securities
of any series or any related coupons 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
(1)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Debt Securities of
such series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Debt Securities of such 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;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(5)
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 Debt Securities of such series;
it being understood and intended that no one or
more of such Holders 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 such Holders, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all of such Holders.
Section 5.08
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Debt Security or coupon shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Debt Security or payment of such coupon
on the respective Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in the case of redemption or repayment,
on the Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder, subject, however, to the provisions of Article Sixteen.
Section 5.09
Restoration of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceedings 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 the Company, the Trustee
and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10
Rights and Remedies Cumulative.
Except as otherwise provided
in Section 306, 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 Debt Security or coupon 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.
Section 5.12
Control by Holders of Debt Securities.
The Holders of a majority
in principal amount of the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture;
(2) subject
to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly prejudicial
to the Holders of Debt Securities of such series not joining in any such direction; and
(3)
the Trustee may take any other action deemed necessary by the Trustee which 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 Debt Securities of any series may on behalf of the Holders of all the Debt Securities
of any such series and any related coupons waive any past default hereunder with respect to such series and its consequences, except a
default
(1) in
the payment of the principal of (or premium, if any) or interest on any Debt Security of such series, or
(2)
in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs.
All parties to this Indenture
agree, and each Holder of any Debt Security or coupon by his 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having a due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Debt Securities
of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debt Security or the payment of any coupons on or after the respective Stated Maturity or Maturities expressed in such
Debt Security or coupon (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
Section 5.15
Waiver of Stay or Extension Laws.
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law whenever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits
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
VI.
The Trustee
Section 6.01
Certain Duties and Responsibilities.
(a)
Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
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).
(b)
In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(i) this subsection shall not be construed to limit the effect of subsection (a) of this Section 601;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the Outstanding Debt Securities of any series, determined as provided
in Sections 101, 104 and 512, 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 Debt 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.
(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 Default.
If a default occurs hereunder
with respect to Debt Securities of any series the Trustee shall transmit by mail to all Holders of Debt Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 501(4) with respect to Debt Securities of such series no such notice to Holders shall be given until
at least 30 days after the occurrence thereof; and provided further, that, except in the case of a default in the payment of principal
of (or premium, if any) or interest on any Debt Security of such series or related coupons or in the payment of any sinking fund installment
with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of the Debt Securities of such series. For the purpose of this Section,
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 Debt Securities of such series.
Section 6.03
Certain Rights of Trustee.
Except as otherwise provided
in Section 601:
(a)
the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any signature, resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other
paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b)
any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order
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 an Officers’ Certificate;
(d)
the Trustee may consult with counsel and the 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 Debt Securities of such series or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which 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, coupon, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney, other than any such books or records containing information
as to the affairs of the customers of the Company or any of its subsidiaries; provided that the Trustee may examine such books
and records relating to customers to the extent that such books and records contain information as to any payments made to such customers
in their capacity as Holders of Debt Securities; and provided further that the Trustee shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; and
(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; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by any of them.
Section 6.04
Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein
and in the Debt Securities, except the Trustee’s certificates of authentication, and in any coupons, and the information in any
registration statement, including all attachments thereto, except information provided by the Trustee therein, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series or any coupons. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no
representations as to the Company’s ability or authority to issue Bearer Securities or the lawfulness thereof.
Section 6.05
May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and coupons, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such agent.
Section 6.06
Money Held in Trust.
Money held by the Trustee
or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee
nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the
Company.
Section 6.07
Compensation and Reimbursement.
The Company agrees
(1) to
pay to the Trustee from time to time such compensation for all services rendered by it hereunder which shall have been separately agreed
to from time to time in writing by the Company and the Trustee (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) 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
or willful misconduct; and
(3) to
fully indemnify the Trustee for, and to hold it harmless against, any and all claims, losses, liabilities, damages or expenses (including
taxes other than taxes based upon the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance
of the obligations of the Company under this Section the Trustee shall have a claim prior to the Debt Securities and any coupons upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons. The claims of the Trustee under this Section shall not be subject to
the provisions of Article Sixteen.
Section 6.08
Disqualification; Conflicting Interests.
If the Trustee has or shall
acquire any 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 such Act, the Trustee shall not be deemed to have a conflicting interest with respect to Debt Securities of any series by
virtue of being a trustee under this Indenture with respect to any particular series of Debt Securities.
Section 6.09
Corporate Trustee Required; Eligibility.
There shall at all times be
a Trustee hereunder which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and organized and
doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $5,000,000, and subject to supervision or examination by Federal
or State authority; provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other jurisdiction to
serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign promptly in the manner and with the effect hereinafter specified in this
Article.
Section 6.10
Resignation and Removal; Appointment of Successor.
(a)
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 under Section 611.
(b) The Trustee may resign at any time with respect to the Debt Securities of one or more series by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee 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 Debt Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30 days of receipt of such Act specifying removal, the removed
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 Debt Securities of such series.
(d)
If at any time:
(1)
the Trustee shall fail to comply with Section 608 with respect to the Debt Securities of any series after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2)
the Trustee shall cease to be eligible under Section 609 with respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3)
the Trustee shall become incapable of acting with respect to any series of Debt Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or
order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation,
or
(4)
the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to such series or (ii) subject to Section 514, any Holder who has been a bona fide Holder
of a Debt Security of any series 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 for the Debt Securities of such series and the appointment of a successor Trustee.
In addition, the Company may remove the Trustee if the Company shall determine by a Board Resolution that the services provided by the
Trustee hereunder may be obtained at a substantially lower cost to the Company.
(e)
If the Trustee shall resign, be removed or become incapable of acting with respect to any series of Debt Securities, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt 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, become the successor Trustee with respect to the Debt Securities
of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section
514, 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 Debt Securities of such series.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Debt Securities of such series are issuable as Bearer Securities, by publishing notice of such event
once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the address of its Corporate Trust Office.
Section 6.11
Acceptance of Appointment by Successor.
(a) In
the case of an appointment hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company 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 request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges due under Section 607 hereof, 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.
(b)
In the case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of
one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) 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 Debt Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt 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 Debt 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 (3) 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 Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on the 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 Debt Securities of that or those series to which the appointment of such successor Trustee relates.
(c)
Upon request of any such successor Trustee, the Company 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 paragraph (a) or (b) of this Section, as
the case may be.
(d)
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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto.
In case any Debt Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not
have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate
of authentication of the Trustee.
Section 6.13
Preferential Collection of Claims Against Company.
If and when the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Debt Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any such
other obligor).
Section 6.14
Authenticating Agent.
The Trustee shall upon Company
request appoint one or more authenticating agents with respect to one or more series of Debt Securities which shall be authorized on behalf
of the Trustee in authenticating Debt Securities of such series in connection with the issue, delivery, registration of transfer, exchange,
partial redemption or repayment of such Debt Securities. Wherever reference is made in this Indenture to the authentication of Debt Securities
by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication 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 must be acceptable to the Company and must be a corporation organized and doing business under the laws of the
United States or of any State, having a combined capital and surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State authorities or the equivalent foreign authority in the case of
an authenticating agent who is not organized and doing business under the laws of the United States or of any State thereof or the District
of Columbia.
Any corporation succeeding
to the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing
of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may
at any time resign with respect to one or more series of Debt Securities by giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time terminate the agency of any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an authenticating agent shall cease to be eligible in accordance with the provisions of
this Section, the Trustee promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating agent shall be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay
to each authenticating agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payment, subject to the provisions of Section 607.
The provisions of Sections
104, 111, 306, 309, 603, 604, 605 and 607 shall be applicable to any authenticating agent.
Pursuant to each appointment
made under this Section, the Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Debt Securities,
of the series designated herein, described in the within-mentioned Indenture.
| [ ] | |
| | | |
| | By: | |
| | | As Authenticating
Agent for the Trustee |
| | | |
| | By: | |
| | | Authorized Signatory |
| | | |
| | By: | |
| | | Dated |
ARTICLE
VII.
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 with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually,
not more than 15 days after the Regular Record Date in respect of the Debt Securities of such series or on May 15 and November 15 of each
year with respect to each series of Debt Securities for which there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or May 1 or November
1, as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long
as the Trustee shall be the Security Registrar, no such list need be furnished.
Section 7.02
Preservation of Information; Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years
the names and addresses of Holders of Bearer Securities filed with the Trustee by such Holders.
(b)
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities,
and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c)
Every Holder of Debt Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee shall be held accountable by reason of any disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
Section 7.03
Reports by Trustee.
(a)
Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Debt Securities pursuant
to this Indenture and at any other time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the
manner required by the Trust Indenture Act.
(b)
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Debt Securities of such series are listed, with the Commission and also with the Company. The Company will notify the Trustee
when any series of Debt Securities are listed on any stock exchange.
Section 7.04
Reports by Company.
The Company shall file with
the Trustee and the Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days of filing with the Commission.
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
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE
VIII.
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01
Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate
with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person,
unless:
(1) the
corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under
the laws of the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including all additional amounts, if any, payable pursuant to Section 1004) on all the Debt Securities
and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been met.
Section 8.02
Successor Corporation Substituted.
Upon any consolidation with
or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor corporation 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 had been named as the Company herein, and thereafter, except
in the case of a lease of the properties and assets of the Company substantially as an entirety, the Company (which term for this purpose
shall mean the Person named as the “Company” in the first paragraph of this instrument or any successor corporation which
shall theretofore have become such in the manner presented in this Article) shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and any coupons.
ARTICLE
IX.
Supplemental Indentures
Section 9.01
Supplemental Indentures without Consent of Holders.
Without the consent of any
Holders, the Company, when authorized by a Board Resolution, 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:
(1)
to evidence the succession of another corporation to the Company, and the assumption by such successor of the covenants of the Company
herein and in the Debt Securities contained; or
(2) to
add to the covenants of the Company, for the benefit of the Holders of all or any series of Debt Securities or coupons (and if such covenants
are to be for the benefit of less than all series of Debt Securities or coupons, stating that such covenants are expressly being included
solely for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to surrender
any right or power herein conferred upon the Company; or
(3)
to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to be applicable to such series); or
(4) to
add to, change or eliminate any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities
of other authorized denominations or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any material
respect; or
(5) to
change or eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become effective only
when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to
establish the form or terms of Debt Securities of any series as permitted by Sections 201 and 301; or
(7) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt 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 611(b); or
(8) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein,
to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, or to make any other additions to, deletions from and other changes to the provisions hereof, provided such
other provisions shall not adversely affect the interests of the Holders of Debt Securities of any series or any related coupons in any
material respect; or
(9) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Debt Securities of any series or any
related coupons in any material respect.
Section 9.02
Supplemental Indentures with Consent of Holders.
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt Securities of all series affected by such supplemental indenture,
acting together as a class, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this
Indenture of such Debt Securities of such series and any related coupons; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debt Security or coupon affected thereby,
(1) change
the Stated Maturity of the principal or any installment of principal of, or any installment of interest on, any Debt Security, or reduce
the principal amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency in which any Debt Security or
the interest thereon or any coupon 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 or repayment, on or after the Redemption Date or Repayment Date, as the case
may be); or
(2)
reduce the percentage in principal amount of the Outstanding Debt 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 reduce the requirements of Section
1404 for quorum or voting; or
(3)
modify any of the provisions of this Section, Section 513 or Section 1006, 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 Debt Security affected
thereby; provided, however, that this clause 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 1006, or the deletion of this proviso,
in accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely
affect the right to repayment, if any, of Debt Securities of any series at the option of the Holders thereof;
and provided, further, that no change shall
be made in the provisions of Article Sixteen that will affect adversely the holders of Senior Debt without the consent of the holders
of all Senior Debt outstanding.
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of
any other series.
It shall not be necessary
for any Act of Holders of the Debt Securities 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.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
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 Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
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 as then in effect.
Section 9.06
Reference in Debt Securities to Supplemental Indentures.
Debt 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
shall so determine, new Debt Securities of any series and any related coupons so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Debt Securities of such series and any related coupons.
ARTICLE
X.
Covenants
Section 10.01
Payment of Principal, Premium and Interest.
The Company covenants and
agrees for the benefit of each series of Debt Securities and any related coupons that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Debt Securities and any related coupons in accordance with the terms of the Debt Securities,
any related coupons and this Indenture. Any interest due on Bearer Securities on or before Maturity, other than additional amounts, if
any, payable as provided in Section 1004 in respect of principal of (or premium, if any, on) such a Debt Security, shall be payable only
upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
Section 10.02
Maintenance of Office or Agency.
The Company will maintain
in each Place of Payment for any series of Debt Securities an office or agency where Debt Securities (but, except as otherwise provided
below, unless such Place of Payment is located outside the United States, not Bearer Securities) may be presented or surrendered for payment,
where Debt Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Debt Securities and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities,
the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Debt Securities of such series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 1004); provided,
however, that if the Debt Securities of such series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in any required city located outside the United States so long as
the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of any such office or agency. 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 or demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series and the related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 1004) at the
place specified for the purpose pursuant to Section 301(5).
No payment of principal of,
premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however,
payment of principal of and any premium and interest denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by, the Company located in the United States if (but only
if) payment of the full amount of such principal, premium, interest or additional amounts in Dollars at all offices outside the United
States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls
or other similar restrictions and the Trustee receives an Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 301 with respect to any series of Debt Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by transfer to an account in such currency maintained by the payee
with a bank located outside the United States.
The Company may also from
time to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Debt Securities of one
or more series and any related coupons (subject to the preceding paragraph) 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 any series of Debt Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such
other office or agency.
Section 10.03
Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or 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 with respect to any series of Debt Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debt Securities of such series and any related coupons, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, 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 with respect to any series of Debt Securities other than 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
(1) hold
all sums held by it for the payment of the principal of (and premium, if any) or interest on Debt Securities of such series and any related
coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give
the Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any related coupons)
in the making of any payment of principal of (and premium, if any) or interest on the Debt Securities of such series or any related coupons;
and
(3)
at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time,
for the purpose of terminating its obligations under this Indenture with respect to Debt Securities of any series or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company 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 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 principal and interest
received on the Eligible Instruments deposited with the Trustee or any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Debt Security of any series or any
related coupons or any money on deposit with the Trustee or any Paying Agent representing amounts deducted from the Redemption Price or
Repayment Price with respect to unmatured coupons not presented upon redemption or exercise of the Holder’s option for repayment
pursuant to Section 1106 or 1303 and remaining unclaimed for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Debt Security or any coupon appertaining thereto 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 (including
the principal and interest received on Eligible Instruments deposited with the Trustee), and all liability of the Company 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 an Authorized Newspaper of general circulation in the Borough of Manhattan,
The City of New York, and each Place of Payment or mailed to each such Holder, or both, 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 or mailing, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 10.04
Payment of Additional Amounts.
If the Debt Securities of
a series provide for the payment of additional amounts, the Company will pay to the Holder of any Debt Security of any series or any coupon
appertaining thereto additional amounts upon the terms and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Debt Security
of any series or any related coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided for in the terms of such Debt Securities and this Section
to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed
as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Debt Securities of
a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that
series of Debt Securities (or if the Debt Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium, if
any) or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate,
the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with
an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Debt Securities of that series shall be made to Holders of Debt Securities of that series or the related
coupons who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described
in the Debt Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify
by country the amount, if any, required to be withheld on such payments to such Holders of Debt Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the additional amounts, if any, required by the terms of such Debt Securities and the first
paragraph of this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against,
any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Section 10.05
Officers’ Certificate as to Default.
The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture, and, if the Company shall be in default, specifying all
such defaults and the nature thereof of which they may have knowledge.
Section 10.06
Waiver of Certain Covenants.
The Company may omit in any
particular instance to comply with any covenant or condition applicable to the Debt Securities of any series pursuant to Section 301 unless
such covenant or condition is determined pursuant to Section 301 not to be subject to this provision if, before the time for such compliance
the Holders of at least a majority in principal amount of all series of the Debt Securities at the time Outstanding to which such covenant
or condition applies shall, acting together as a class, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant 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 covenant or condition shall remain in full force and effect.
ARTICLE
XI.
Redemption of Debt Securities
Section 11.01
Applicability of Article.
Debt Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series) in accordance with this Article.
Section 11.02
Election to Redeem; Notice to Trustee.
The election of the Company
to redeem any Debt Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Debt Securities of any series, the Company shall, at least 45 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 and the
tenor and terms of the Debt Securities of any series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Debt 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 Debt Securities to be Redeemed.
Except as otherwise specified
as contemplated by Section 301 for Debt Securities of any series, if less than all the Debt Securities of any series with like tenor and
terms are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Debt Securities of such series with like tenor and terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Debt Securities of such series or any integral multiple thereof which is also an authorized
denomination) of the principal amount of Registered Securities or Bearer Securities (if issued in more than one authorized denomination)
of such series of a denomination larger than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly
notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial
redemption, 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 Debt Securities shall relate, in the case of any Debt
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which 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 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Debt Securities to be redeemed.
All notices of redemption
shall state:
(1)
the Redemption Date;
(2)
the Redemption Price;
(3)
if less than all Outstanding Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed;
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date;
(5)
the Place or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all coupons, if any, appertaining
thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6)
that Bearer Securities may be surrendered for payment only at such place or places which are outside the United States, except as otherwise
provided in Section 1002;
(7)
that the redemption is for a sinking fund, if such is the case; and
(8)
the CUSIP number, if any.
A notice of redemption published
as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt
Securities to be redeemed at the election of the Company shall be given by the Company, or, at the Company’s request, by the Trustee
in the name and at the expense of the Company.
Section 11.05
Deposit of Redemption Price.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holders of the Debt Securities to be redeemed) will provide money on
or prior to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be redeemed on that date; provided, however, that deposits
with respect to Bearer Securities shall be made with a Paying Agent or Paying Agents located outside the United States except as otherwise
provided in Section 1002, unless otherwise specified as contemplated by Section 301.
Section 11.06
Debt Securities Payable on Redemption Date.
Notice of redemption having
been given as aforesaid, the Debt Securities 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 Debt Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice,
such Debt Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered
for redemption shall not be accompanied by all related coupons maturing after the Redemption Date, such Bearer Security may be paid after
deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Debt Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Debt Security.
Section 11.07
Debt Securities Redeemed in Part.
Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar
and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE
XII.
Sinking Funds
Section 12.01
Applicability of Article.
The provisions of this Article
shall be applicable to any sinking fund for the retirement of Debt Securities of a series except as otherwise specified as contemplated
by Section 301 for Debt Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Debt Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the term of Debt Securities of any series is herein referred
to as an “optional sinking fund payment”. If provided for by the terms of Debt Securities of any series, the amount of any
sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption
of Debt Securities of any series as provided for by the terms of Debt Securities of such series.
Section 12.02
Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver
Outstanding Debt Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Debt Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided
for by the terms of such series; provided that such Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Debt Securities in lieu of cash payments pursuant to this Section 1202, the principal amount of Debt Securities
to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
Section 12.03
Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior
to each sinking fund payment date for any series of Debt Securities (unless a shorter period shall be satisfactory to the Trustee), the
Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash, the portion
thereof, if any, which is to be satisfied by crediting Debt Securities of that series pursuant to Section 1202 and the basis for any such
credit and, prior to or concurrently with the delivery of such Officers’ Certificate, will also deliver to the Trustee any Debt
Securities to be so credited and not theretofore delivered to the Trustee. Not less than 30 days (unless a shorter period shall be satisfactory
to the Trustee) before each such sinking fund payment date the Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Debt Securities
shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE
XIII.
Repayment at the Option of Holders
Section 13.01
Applicability of Article.
Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and
(except as otherwise specified pursuant to Section 301 for Debt Securities of such series) in accordance with this Article.
Section 13.02
Repayment of Debt Securities.
Each Debt Security which is
subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment
Price together with interest accrued to such Repayment Date as specified pursuant to Section 301.
Section 13.03
Exercise of Option; Notice.
Each Holder desiring to exercise
such Holder’s option for repayment shall, as conditions to such repayment, surrender the Debt Security to be repaid in whole or
in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided, however, that surrender of Bearer Securities together
with written notice of exercise of such option shall be made at an office or agency located outside the United States except as otherwise
provided in Section 1002. Such notice, which shall be irrevocable, shall specify the principal amount of such Debt Security to be repaid,
which shall be equal to the minimum authorized denomination for such Debt Security or an integral multiple thereof, and shall identify
the Debt Security to be repaid and, in the case of a partial repayment of the Debt Security, shall specify the denomination or denominations
of the Debt Security or Debt Securities of the same series to be issued to the Holder for the portion of the principal of the Debt Security
surrendered which is not to be repaid.
If any Bearer Security surrendered
for repayment shall not be accompanied by all unmatured coupons and all matured coupons in default, such Bearer Security may be paid after
deducting from the Repayment Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repayment Price, such Holder shall
be entitled to receive the amount so deducted without interest thereon; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States except as otherwise provided in Section 1002.
The Company shall execute
and the Trustee shall authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered
Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Registered Security so surrendered which is not to be repaid.
The Company shall execute
and the Trustee shall authenticate and deliver without service charge to the Holder of any Bearer Security so surrendered a new Registered
Security or Securities or new Bearer Security or Securities (and all related unmatured coupons and matured coupons in default) or any
combination thereof of the same series of any authorized denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so surrendered which is not to be paid; provided, however,
that the issuance of a Registered Security therefor shall be subject to applicable laws and regulations, including provisions of the United
States Federal income tax laws and regulations in effect at the time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has received an Opinion of Counsel that as a result of such issuance
the Company would suffer adverse consequences under the United States Federal income tax laws then in effect and the Company has delivered
to the Trustee a Company Order directing the Trustee not to make such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the repayment of Debt Securities shall relate, in the case of any Debt
Security repaid or to be repaid only in part, to the portion of the principal of such Debt Security which has been or is to be repaid.
Section 13.04
Election of Repayment by Remarketing Entities.
The Company may elect, with
respect to Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any
time prior to any Repayment Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender their Debt Securities in accordance with Section 1303.
Section 13.05
Securities Payable on the Repayment Date.
Notice of exercise of the
option of repayment having been given and the Debt Securities so to be repaid having been surrendered as aforesaid, such Debt Securities
shall, unless purchased in accordance with Section 1304, on the Repayment Date become due and payable at the price therein specified and
from and after the Repayment Date such Debt Securities shall cease to bear interest and shall be paid on the Repayment Date, and the coupons
for such interest appertaining to Bearer Securities so to be repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price in which case the Company shall continue to be obligated for the principal amount of such Debt
Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE
XIV.
Meetings of Holders of Debt Securities
Section 14.01
Purposes for Which Meetings May Be Called.
If Debt Securities of a series
are issuable in whole or in part as Bearer Securities, a meeting of Holders of Debt Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of Debt Securities of such series.
Section 14.02
Call, Notice and Place of Meetings.
(a)
The Trustee may at any time call a meeting of Holders of Debt Securities of any series issuable as Bearer Securities for any purpose
specified in Section 1401, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London as
the Trustee shall determine. Notice of every meeting of Holders of Debt Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b)
In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Debt Securities of any series shall have requested the Trustee to call a meeting of the Holders of Debt Securities of such series for
any purpose specified in Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Debt Securities of
such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City
of New York, or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection
(a) of this Section.
Section 14.03
Persons Entitled to Vote at Meetings.
To be entitled to vote at
any meeting of Holders of Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Debt Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Debt Securities
of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Debt Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 14.04
Quorum; Action.
The Persons entitled to vote
a majority in principal amount of the Outstanding Debt Securities of a series shall constitute a quorum for a meeting of Holders of Debt
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Debt Securities of such series
which shall constitute a quorum.
Except as limited by the proviso
to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted only by the affirmative vote of the Holders of majority in principal amount of the Outstanding Debt Securities of that series,
provided however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision
taken at any meeting of Holders of Debt Securities of any series duly held in accordance with this Section shall be binding on all the
Holders of Debt Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 14.05
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Debt Securities of such series in regard to proof of the holding of Debt Securities of such series and of
the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Debt Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or, in the case of Bearer Securities,
by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have
been called by the Company or by Holders of Debt Securities as provided in Section 1402(b), in which case the Company or the Holders of
Debt Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent
chairperson and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the meeting.
(c)
At any meeting each Holder of a Debt Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount
(or the equivalent in Euro, any other composite currency or a Foreign Currency) of Debt Securities of such series held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Debt Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d)
Any meeting of Holders of Debt Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Debt Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 14.06
Counting Votes and Recording Action of Meetings.
The vote upon any resolution
submitted to any meeting of Holders of Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the
proceedings of each meeting of Holders of Debt Securities of any series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1401. Each copy shall be signed and verified by the affidavits of the permanent chairperson
and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE
XV.
Defeasance
Section 15.01
Termination of Company’s Obligations.
If this Section 1501 is specified,
as contemplated by Section 301, to be applicable to any series of Debt Securities and if the Company deposits irrevocably in trust with
the Trustee money and/or, to the extent such Debt Securities are denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and providing no tax liability will be imposed upon the Trustee
or the Holders of such Debt Securities) will provide money in such amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal of
(and premium, if any) or interest when due on the Debt Securities of such series and any coupons appertaining thereto and any mandatory
sinking fund, repayment or analogous payments thereon on the scheduled due dates therefor at the Stated Maturity thereof, the Company’s
obligations under any covenant determined pursuant to Section 301 to be subject to this Section shall terminate with respect to the Debt
Securities of the series for which such deposit was made; provided, however, that (i) no Event of Default with respect to the Debt
Securities of such series under Section 501(5) or 501(6) or event that with notice or lapse of time or both would constitute such an Event
of Default shall have occurred and be continuing on such date, (ii) such deposit will not result in a breach of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, and (iii) such termination
shall not relieve the Company of its obligations under the Debt Securities of such series and this Indenture to pay when due the principal
of (and premium, if any) and interest and additional amounts on such Debt Securities and any coupons appertaining thereto if such Debt
Securities or coupons are not paid (or payment is not provided for) when due from the money and Eligible Instruments (and the proceeds
thereof) so deposited.
It shall be a condition to
the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions of this
Section with respect to the Debt Securities of any series under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such series
and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and termination and (b) such Holders (and future Holders) will be subject to tax in the same amount, manner and timing as if such deposit
and termination had not occurred, (ii) an Officers’ Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof will be sufficient, after payment of all Federal, state
and local taxes in respect thereof payable by the Trustee, to pay principal (and premium, if any) and interest when due on the Debt Securities
of such series and any coupons appertaining thereto; and (iii) an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the defeasance contemplated in this Section have been complied with.
It shall be an additional
condition to the deposit of cash and/or Eligible Instruments and the termination of the Company’s obligations pursuant to the provisions
of this Section under any covenant determined pursuant to Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed, that the Company deliver an Opinion of Counsel that the Debt Securities of such series will not be delisted
as a result of such deposit and termination.
After a deposit as provided
herein, the Trustee shall, upon Company Request, acknowledge in writing the discharge of the Company’s obligations pursuant to the
provisions of this Section with respect to the Debt Securities of such series under any covenant determined pursuant to Section 301 to
be subject to this Section.
Section 15.02
Repayment to Company.
The Trustee and any Paying
Agent shall promptly pay to the Company upon Company Request any money or Eligible Instruments not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series and any related coupons for which money or Eligible Instruments
have been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying
Agent shall promptly pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any)
and interest that remains unclaimed for two years after the Maturity of the Debt Securities for which a deposit has been made pursuant
to Section 1501. After such payment to the Company, the Holders of the Debt Securities of such series and any related coupons shall thereafter,
as unsecured general creditors, look only to the Company for the payment thereof.
Section 15.03
Indemnity for Eligible Instruments.
The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Eligible Instruments or
the principal or interest received on such Eligible Instruments.
ARTICLE
XVI.
Subordination of Debt Securities
Section 16.01
Debt Securities Subordinate to Senior Debt.
The Company covenants and
agrees that anything in this Indenture or the Debt Securities of any series to the contrary notwithstanding, the indebtedness evidenced
by the Debt Securities of each series and any coupons appurtenant thereto is subordinate and junior in right of payment to all Senior
Debt to the extent provided herein, and each Holder of Debt Securities of each series and coupons appurtenant thereto, by such Holder’s
acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. Senior
Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification
or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt.
In the event of
(i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property,
(ii)
any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(iii)
any assignment by the Company for the benefit of creditors, or
(iv)
any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon
accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the Debt Securities or coupons appurtenant thereto on account thereof.
Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Debt Securities, to the payment of all Senior Debt at the time
outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise
(but for these subordination provisions) be payable or deliverable in respect of the Debt Securities of any series or coupons appurtenant
thereto shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in
full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt, the Holders of the Debt
Securities and coupons appurtenant thereto, together with the holders of any obligations of the Company ranking on a parity with the Debt
Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest on the Debt Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior
to the Debt Securities and such other obligations.
In the event that, notwithstanding
the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Debt Securities, to
the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the
Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized
to endorse or assign the same.
No present or future holder
of any Senior Debt shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Debt Securities by any
act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders the principal of (and premium, if any) and interest on
such Debt Securities and coupons appurtenant thereto or prevent the Trustee or the Holder from exercising all rights, powers and remedies
otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Debt to receive cash, securities or other property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed
to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such
Senior Debt then outstanding. Upon the payment in full of all Senior Debt, the Holders of Debt Securities of each series and coupons appurtenant
thereto, if any, shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable
to the Senior Debt until the indebtedness evidenced by the Debt Securities of such series and coupons appertaining thereto, if any, shall
have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities
or other property which otherwise would be paid or distributed to the holders of Senior Debt shall, as between the Company and its creditors
other than the holders of Senior Debt, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company
on account of Senior Debt, and not on account of the Debt Securities of such series.
The Trustee and Holders will
take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Debt or consent
to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority
in principal amount of the Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section
1601 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security interest
the creation of which is not prohibited by the provisions of this Indenture.
Section 16.02
Trustee and Holders of Debt Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution
of assets of the Company referred to in this Article Sixteen, the Trustee and the Holders shall be entitled to rely upon an order or decree
made by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings
are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other Person making
such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Sixteen. In the absence of any
such bankruptcy trustee, receiver, assignee or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing
himself or herself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payments or distributions
pursuant to this Article Sixteen, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Debt held by such Person, as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person under this Article Sixteen, and if such evidence is not
furnished, the Trustee may offer any payment to such Person pending judicial determination as to the right of such Person to receive payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt.
Section 16.03
Payment Permitted If No Default.
Nothing contained in this
Article Sixteen or elsewhere in this Indenture, or in any of the Debt Securities, shall prevent (a) the Company at any time, except during
the pendency of any dissolution, winding up, liquidation or reorganization proceedings referred to in Section 1601, from making payments
of the principal of (or premium, if any) or interest on the Debt Securities or (b) the application by the Trustee or any Paying Agent
of any moneys deposited with it hereunder to payments of the principal of or interest on the Debt Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the written notice provided for in Section 1604 of any event
prohibiting the making of such deposit, or if, at the time of such deposit (whether or not in trust) by the Company with the Trustee or
any Paying Agent (other than the Company) such payment would not have been prohibited by the provisions of this Article, and the Trustee
or any Paying Agent shall not be affected by any notice to the contrary received by it on or after such date.
Section 16.04
Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen
or elsewhere in this Indenture contained to the contrary notwithstanding, the Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment of money to or by the Trustee and shall be entitled conclusively
to assume that no such facts exist and that no event specified in Section 1601 has happened, until the Trustee shall have received an
Officers’ Certificate to that effect or notice in writing to that effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Debt who shall have been certified by the Company or otherwise established to the reasonable satisfaction of
the Trustee to be such holder or holders or representatives or from any trustee under any indenture pursuant to which such Senior Debt
shall be outstanding. The Company shall give prompt written notice to the Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee or any Paying Agent.
Section 16.05
Trustee to Effectuate Subordination.
Each Holder of Debt Securities
or coupons by such Holder’s acceptance thereof authorizes and directs the Trustee in such Holder’s behalf to take such action
as may be necessary or appropriate to effectuate the subordination as between such Holder and holders of Senior Debt as provided in this
Article and appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 16.06
Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled
to all the rights set forth in this Article with respect to any Senior Debt which may at the time be held by it, to the same extent as
any other holder of Senior Debt; provided that nothing in this Article shall deprive the Trustee of any rights as such holder and
provided further that nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section
607.
Section 16.07
Article Applicable to Paying Agents.
In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if the Paying Agent were named in this Article in addition to or in
place of the Trustee, provided, however, that Sections 1604 and 1606 shall not apply to the Company or any Affiliate of the Company
if the Company or such Affiliate acts as Paying Agent.
Section 16.08
Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt.
No right of any present or
future holders of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior Debt may, at any time or from time to time and in their absolute discretion,
change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Senior Debt, or amend
or supplement any instrument pursuant to which any such Senior Debt is issued or by which it may be secured, or release any security therefor,
or exercise or refrain from exercising any other of their rights under the Senior Debt including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of the Debt Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of the Debt Securities under this Article.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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TACTILE SYSTEMS TECHNOLOGY, INC. |
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Its: |
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EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by
a
Non-United States Person or by Certain Other Persons]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to
the Indenture dated as of [ ] (the “Indenture”) between Tactile Systems Technology, Inc. and [ ] (the “Trustee”),
covering the above-captioned Debt Securities. This is to certify that as of the date hereof, principal amount of Debt Securities credited
to you for our account (i) is owned by persons that are not United States Persons, as defined below; (ii) is owned by United States Persons
that are (a) foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
(“financial institutions”) purchasing for their own account or for resale, or (b) United States Persons who acquired the Debt
Securities through foreign branches of United States financial institutions and who hold the Debt Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution encloses herewith
a certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which United States or
foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Debt Securities for purposes of resale directly or indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does
not relate to an interest payment—We undertake to advise you by tested telex followed by written confirmation if the above statement
as to beneficial ownership is not correct on the date of delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in your books as being held for our account.] We understand
that this certificate is required in connection with United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
“United States Person” shall mean a citizen or resident of the United States of America (including the District of Columbia),
a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust that is subject to United States Federal income taxation regardless of the source of its income.
[This certificate excepts
and does not relate to principal amount of Debt Securities credited to you for our account and to which we are not now able to make the
certification set forth above. We understand that definitive Debt Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Debt Securities.]*
[To be dated on or after (the date determined
as provided in the Indenture)]
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[Name of Person Entitled to Receive Bearer Security] |
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EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to
the Indenture dated as of [ ] (the “Indenture”), between Tactile Systems Technology, Inc. and [ ], relating to the offering
of the above-captioned Debt Securities (the “Debt Securities”). Unless herein defined, terms used herein have the same meaning
as given to them in the Indenture.
The undersigned represents
that it is a branch located outside the United States of a United States securities clearing organization, bank or other financial institution
(as defined in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds customers’ securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the issuer’s agent, that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the United States or its possessions. We undertake to advise you
by tested telex followed by written confirmation if the statement in the immediately preceding sentence is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form.
We understand that this certificate
is required in connection with the United States tax laws. We irrevocably authorize you to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings with respect to the matters covered by this certificate.
[To be dated on or after (the date determined
as provided in the Indenture)]
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[Name of Person Entitled to Receive Bearer Security] |
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EXHIBIT B
[Form of Certificate to be Given by Euroclear and
Clearstream
in Connection with the Exchange of All or a Portion
of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
TACTILE SYSTEMS TECHNOLOGY, INC.
[Insert title or sufficient description of Debt
Securities to be delivered]
We refer to that portion,
, of the Global Security representing the above-captioned issue [which is herewith submitted to be exchanged for definitive Debt Securities]*
[for which we are seeking to obtain payment of interest]* (the “Submitted Portion”). This is to certify, pursuant to the Indenture
dated as of [ ] (the “Indenture”) between Tactile Systems Technology, Inc. and [ ] (the “Trustee”), that we have
received in writing, by tested telex or by electronic transmission from member organizations with respect to each of the persons appearing
in our records as being entitled to a beneficial interest in the Submitted Portion a Certificate of Beneficial Ownership by a Non-United
States Person or by Certain Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a United States Financial
Institution, authorizing us to inform the issuer or the issuer’s agent that it will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986 and the regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you
deliver to the office of in definitive Bearer Securities in the denominations on the attached Schedule A.
We further certify that as
of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements
made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date hereof.
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[ |
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, as |
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Operator of the Euroclear System] [Clearstream] |
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By: |
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*Delete if inappropriate.
Exhibit 5.1
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Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, Minnesota 55402
+1 612 766 7000 main
+1 612 766 1600 fax |
January 18, 2023
Tactile Systems Technology, Inc.
3701 Wayzata Blvd, Suite 300
Minneapolis, MN 55416
Ladies and
Gentlemen:
We have acted as counsel to Tactile Systems Technology,
Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration
Statement”) being filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement relates to the issuance
and sale from time to time by the Company, pursuant to Rule 415 of the Securities Act, of the following securities of the Company
having an aggregate initial offering price of up to $150,000,000: (i) shares of common stock, $0.00001 par value per share (“Common
Stock”); (ii) shares of preferred stock, $0.00001 par value per share (“Preferred Stock”), in one or more classes
or series; (iii) one or more series of senior debt securities (“Senior Debt Securities”); (iv) one or more series
of subordinated debt securities (“Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt
Securities”); (v) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities (collectively,
“Warrants”); (vi) units, consisting of Common Stock, Preferred Stock, Debt Securities, Purchase Contracts (as defined
below), Warrants or Rights (as defined below) in any combination (the “Units”); (vii) purchase contracts for the purchase
of Common Stock or other securities (the “Purchase Contracts”); and (viii) rights to purchase shares of Common Stock (“Rights”).
The Common Stock, Preferred Stock, Debt Securities,
Warrants, Units, Purchase Contracts and Rights are collectively referred to herein as the “Offered Securities.” The Offered
Securities may be offered separately or together with other Offered Securities, in one or more series, and in amounts, at prices and on
terms to be set forth in the prospectus, and one or more supplements thereto constituting a part of the Registration Statement.
This opinion letter is being delivered in accordance
with the requirements of Item 601(b)(5) of Regulation S-K.
Any Common Stock is to be issued under the Amended
and Restated Certificate of Incorporation of the Company, as amended through May 9, 2019, as may be amended from time to time (the “Certificate
of Incorporation”). Any series of Preferred Stock is to be issued under the Certificate of Incorporation and one or more certificates
of designation thereto approved by the Board of Directors of the Company and filed with the Secretary of State of the State of Delaware
(each, a “Certificate of Designation”). Any series of Senior Debt Securities is to be issued pursuant to an indenture (the
“Senior Indenture”) between the Company and a trustee to be named by the Company substantially in the form filed as Exhibit
4.3 to the Registration Statement, with appropriate insertions, and duly qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”). Any series of Subordinated Debt Securities is to be issued pursuant to an indenture (the “Subordinated
Indenture”) between the Company and a trustee to be named by the Company substantially in the form filed as Exhibit 4.4 to the Registration
Statement, with appropriate insertions, and duly qualified under the Trust Indenture Act. Any Warrants are to be issued pursuant
to a warrant agreement (including, if applicable, a form of certificate evidencing the Warrants) (the “Warrant Agreement”),
which will be filed as an exhibit to and incorporated into the Registration Statement. Any Units are to be issued pursuant to a
unit agreement (including, if applicable, a form of certificate evidencing the Units) (the “Unit Agreement”), which will be
filed as an exhibit to and incorporated into the Registration Statement. Any Purchase Contracts are to be issued pursuant to a purchase
contract agreement (including, if applicable, a form of certificate evidencing the Purchase Contracts) (the “Purchase Contract Agreement”),
which will be filed as an exhibit to and incorporated into the Registration Statement. Any Rights are to be issued pursuant to a
rights agreement (including, if applicable, a form of certificate evidencing the Rights) (the “Rights Agreement”), which will
be filed as an exhibit to and incorporated into the Registration Statement.
The Certificate of Incorporation, each Certificate
of Designation, the Senior Indenture, any supplements thereto, the Subordinated Indenture, any supplements thereto, each Warrant Agreement,
each Unit Agreement, each Purchase Contract Agreement and each Rights Agreement are referred to herein individually as a “Governing
Document” and collectively as the “Governing Documents.”
As counsel for the Company, we are familiar with
the Certificate of Incorporation and Amended and Restated Bylaws of the Company, effective as of December 19, 2022 (the “Bylaws”),
each as amended to the date hereof, and we have reviewed originals, or copies certified or otherwise authenticated to our satisfaction,
of (i) the Registration Statement, (ii) the form of Senior Indenture, (iii) the form of Subordinated Indenture, and (iv) the
proceedings taken by the Company in connection with the authorization of the Offered Securities. We have also examined originals, or copies
certified or otherwise authenticated to our satisfaction, of such corporate records of the Company and other instruments, certificates
of public officials and representatives of the Company, and other documents as we have deemed necessary as a basis for the opinions hereinafter
expressed and have made such examination of statutes and decisions and reviewed such questions of law as we have deemed necessary or appropriate
for the purposes of this opinion letter.
Based on and subject to the foregoing and to the
other qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to the shares of Common Stock, including shares of Common Stock issuable in exchange for or upon conversion of Preferred
Stock or Debt Securities or upon the exercise of Warrants or Rights or pursuant to Purchase Contracts or issued as a component of Units
(the “Offered Common Stock”) when (i) a prospectus supplement and any other offering material with respect to the Offered
Common Stock have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii)
any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained,
(iii) the appropriate corporate action has been taken by the Company to authorize the issuance of the Offered Common Stock, (iv) the Offered
Common Stock has been issued by the Company against payment of the agreed-upon consideration therefor in accordance with any relevant
agreements and such corporate action, (v) in the case of Common Stock issuable in exchange for or upon conversion of Preferred Stock or
Debt Securities or upon the exercise of Warrants or Rights or pursuant to Purchase Contracts or issued as a component of Units, the actions
in respect of such Preferred Stock, Debt Securities, Warrants, Rights, Purchase Contracts or Units referred to in paragraph 2, 3, 4, 5,
6, 7 or 8 hereof (as the case may be) have been completed, and (vi) unless issued without certificates, certificates representing the
Offered Common Stock have been duly executed by the duly authorized officers of the Company, countersigned by the transfer agent therefor
and delivered to the purchasers thereof or other persons entitled thereto (or in the case of shares of Offered Common Stock issued without
certificates, the due registration of issuance and constructive delivery through book entry of such shares), then, upon the happening
of such events, such Offered Common Stock will be validly issued, fully paid and nonassessable.
2. With respect to the shares of any series of Preferred Stock, including shares of Preferred Stock issuable in exchange for or upon conversion
of Debt Securities or upon the exercise of Warrants or pursuant to Purchase Contracts or issued as a component of Units (the “Offered
Preferred Stock”), when (i) a prospectus supplement and any other offering material with respect to the Offered Preferred Stock
have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii) any legally required
consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained, (iii) the appropriate
corporate action has been taken by the Company to authorize the issuance of the Offered Preferred Stock, to fix the terms thereof, and
to authorize the execution and filing with the Secretary of State of the State of Delaware of a Certificate of Designation relating thereto,
(iv) such Certificate of Designation has been executed by duly authorized officers of the Company and so filed by the Company in accordance
with the laws of the State of Delaware, (v) the Offered Preferred Stock with terms so fixed has been issued by the Company against payment
of the agreed-upon consideration therefor in accordance with any relevant agreements and such corporate action, (vi) in the case of Preferred
Stock issuable in exchange for or upon conversion of Debt Securities or upon the exercise of Warrants or pursuant to Purchase Contracts
or issued as a component of Units, the actions in respect of such Debt Securities, Warrants, Purchase Contracts or Units referred to in
paragraph 3, 4, 5, 7, or 8 hereof (as the case may be) have been completed, and (vii) unless issued without certificates, certificates
representing the Offered Preferred Stock have been duly executed by the duly authorized officers of the Company, countersigned by the
transfer agent therefor and delivered to the purchasers thereof or other persons entitled thereto (or in the case of shares of Offered
Preferred Stock issued without certificates, the due registration of issuance and constructive delivery through book entry of such shares),
then, upon the happening of such events, such Offered Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to any series of Senior Debt Securities, including Senior Debt Securities issuable upon the exercise of Warrants or pursuant
to Purchase Contracts or issued as a component of Units, when (i) a prospectus supplement and any other offering material with respect
to such series of Senior Debt Securities have been filed with the Commission in compliance with the Securities Act and the rules and regulations
thereunder, (ii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory
authorities are obtained, (iii) the appropriate corporate action has been taken by the Company to authorize the issuance and terms of
such series of Senior Debt Securities and related matters and to authorize the execution and delivery of the Senior Indenture and a supplement
to the Senior Indenture with respect to such series of Senior Debt Securities, (iv) the Senior Indenture and a supplement to the Senior
Indenture with respect to such series of Senior Debt Securities have been duly executed and delivered by the Company and the trustee,
(v) such Senior Debt Securities have been duly executed and authenticated in accordance with the provisions of the Senior Indenture, as
supplemented, and duly delivered to the purchasers thereof or other persons entitled thereto upon payment of the agreed-upon consideration
therefor in accordance with any relevant agreements and such corporate action, and (vi) in the case of Senior Debt Securities issuable
upon the exercise of Warrants or pursuant to Purchase Contracts or issued as a component of Units, the actions in respect of such Warrants,
Purchase Contracts or Units referred to in paragraph 5, 7 or 8 hereof (as the case may be) have been completed, then, upon the happening
of such events, such Senior Debt Securities will be valid and legally binding obligations of the Company, enforceable against the Company
in accordance with their respective terms.
4. With respect to any series of Subordinated Debt Securities, including Subordinated Debt Securities issuable upon the exercise of Warrants
or pursuant to Purchase Contracts or issued as a component of Units, when (i) a prospectus supplement and any other offering material
with respect to such series of Subordinated Debt Securities have been filed with the Commission in compliance with the Securities Act
and the rules and regulations thereunder, (ii) any legally required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities are obtained, (iii) the appropriate corporate action has been taken by the Company to authorize the
issuance and terms of such series of Subordinated Debt Securities and related matters and to authorize the execution and delivery of the
Subordinated Indenture and a supplement to the Subordinated Indenture with respect to such series of Subordinated Debt Securities, (iv)
the Subordinated Indenture and a supplement to the Subordinated Indenture with respect to such series of Subordinated Debt Securities
have been duly executed and delivered by the Company and the trustee, (v) such Subordinated Debt Securities have been duly executed and
authenticated in accordance with the provisions of the Subordinated Indenture, as supplemented, and duly delivered to the purchasers thereof
or other persons entitled thereto upon payment of the agreed-upon consideration therefor in accordance with any relevant agreements and
such corporate action, and (vi) in the case of Subordinated Debt Securities issuable upon the exercise of Warrants or pursuant to Purchase
Contracts or issued as a component of Units, the actions in respect of such Warrants, Purchase Contracts or Units referred to in paragraph
5, 7 or 8 hereof (as the case may be) have been completed, then, upon the happening of such events, such Subordinated Debt Securities
will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
5. With respect to any Warrants, including Warrants issued as a component of Units, when (i) a prospectus supplement and any other offering
material with respect to such Warrants have been filed with the Commission in compliance with the Securities Act and the rules and regulations
thereunder, (ii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory
authorities are obtained, (iii) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution
and delivery of a Warrant Agreement (including, if applicable, a form of certificate evidencing such Warrants) and the issuance of such
Warrants, (iv) the Warrant Agreement has been duly executed and delivered by the Company and the warrant agent, (v) if applicable, certificates
evidencing the Warrants with such terms are duly executed, attested, issued and delivered pursuant to such Warrant Agreement, (vi) the
agreed-upon consideration therefor has been paid in accordance with the applicable Warrant Agreement and any other relevant agreements
and such corporate action, and (vii) in the case of Warrants issued as a component of Units, the actions in respect of such Units referred
to in paragraph 7 hereof have been completed, then, upon the happening of such events, such Warrants will constitute valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
6. With respect to any Rights, including Rights issued as a component of Units, when (i) a prospectus supplement and any other offering material
with respect to such Rights have been filed with the Commission in compliance with the Securities Act and the rules and regulations thereunder,
(ii) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities
are obtained, (iii) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery
of a Rights Agreement (including, if applicable, a form of certificate evidencing such Rights) and the issuance of such Rights, (iv) the
Rights Agreement has been duly executed and delivered by the Company and the rights agent, (v) if applicable, certificates evidencing
the Rights with such terms are duly executed, attested, issued and delivered pursuant to the Rights Agreement, (vi) the agreed-upon consideration
therefor has been paid in accordance with the applicable Rights Agreement and any other relevant agreements and such corporate action,
and (vii) in the case of Rights issued as a component of Units, the actions in respect of such Units referred to in paragraph 7 hereof
have been completed, then, upon the happening of such events, such Rights will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their respective terms.
7. With respect to any Units, when (i) a prospectus supplement and any other offering material with respect to such Units have been filed
with the Commission in compliance with the Securities Act and the rules and regulations thereunder, (ii) any legally required consents,
approvals, authorizations and other orders of the Commission and any other regulatory authorities are obtained, (iii) the appropriate
corporate action has been taken by the Company to authorize the form, terms, execution and delivery of a Unit Agreement (including, if
applicable, a form of certificate evidencing such Units) and the issuance of such Units, (iv) the Unit Agreement has been duly executed
and delivered by the Company and the unit agent, (v) if applicable, certificates evidencing the Units with such terms are duly executed,
attested, issued and delivered pursuant to the Unit Agreement, (vi) the agreed-upon consideration therefor has been paid in accordance
with the applicable Unit Agreement and any other relevant agreements and such corporate action, and (vii) the actions in respect of any
Common Stock, Preferred Stock, Debt Securities, Warrants, Rights and/or Purchase Contracts comprising such Units referred to in paragraphs
1, 2, 3, 4, 5, 6 and/or 8 hereof (as the case may be) have been completed, then, upon the happening of such events, such Units will constitute
valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
8. With respect to any Purchase Contracts, including Purchase Contracts issued as a component of Units, when (i) a prospectus supplement
and any other offering material with respect to such Purchase Contracts have been filed with the Commission in compliance with the Securities
Act and the rules and regulations thereunder, (ii) any legally required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities are obtained, (iii) the appropriate corporate action has been taken by the Company to authorize the
form, terms, execution and delivery of a Purchase Contract Agreement (including, if applicable, a form of certificate evidencing such
Purchase Contracts) and the issuance of such Purchase Contracts, (iv) the Purchase Contract Agreement has been duly executed and delivered
by the Company and the purchase contract agent, (v) if applicable, certificates evidencing the Purchase Contracts with such terms are
duly executed, attested, issued and delivered pursuant to the Purchase Contract Agreement, (vi) the agreed-upon consideration therefor
has been paid in accordance with the applicable Purchase Contract Agreement and any other relevant agreements and such corporate action,
and (vii) in the case of Purchase Contracts issued as a component of Units, the actions in respect of such Units referred to in paragraph
7 hereof have been completed, then, upon the happening of such events, such Purchase Contracts will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with their respective terms.
The foregoing opinions are subject to the limitation
that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable
bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance, fraudulent transfer,
voidable transactions, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general
principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible
unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in
equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms,
and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.
The foregoing opinions assume that (a) the
Registration Statement and any amendments relating thereto shall have become effective under the Securities Act and will continue to be
effective, (b) the Company will remain duly organized, validly existing and in good standing under the laws of the State of Delaware,
(c) at the time any Offered Securities or Governing Documents are authorized, issued, executed, authenticated, acknowledged, delivered
or filed (as the case may be), (i) there will not have occurred any change in the law or in the Certificate of Incorporation or Bylaws
affecting the authorization, issuance, execution, authentication, acknowledgement, delivery, filing, validity or enforceability of such
Offered Securities or Governing Documents, and (ii) no relevant corporate actions will have been modified or rescinded, (d) none
of the particular terms of any Offered Securities or Governing Documents established after the date hereof will violate, or be void or
voidable under, any applicable law, (e) neither the authorization, issuance, execution, authentication, acknowledgement, delivery
or filing of any Offered Securities or Governing Documents, nor the compliance by the Company with the terms of such Offered Securities
or Governing Documents, will result in a violation of or default under any agreement or instrument then binding upon the Company or any
order of any court or governmental body having jurisdiction over the Company then in effect, (f) the Offered Securities will be issued
in accordance with, and in compliance with any limitations on issuance contained in, the corporate action related thereto, (g) the
Company will have received legally sufficient consideration for all Offered Securities, (h) each party to any Offered Securities
or Governing Documents (other than the Company) will have duly authorized, executed and delivered such agreements or instruments and complied
with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against
the Company and will have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments
enforceable against it, (i) the Senior Indenture and the Subordinated Indenture will have been qualified under the Trust Indenture
Act, (j) the terms of the Offered Securities will be established in conformity with the applicable Governing Documents and the Offered
Securities will be issued within the limits of the then remaining authorized but unreserved and unissued amounts of such Offered Securities
under the Governing Documents, (k) any Offered Securities issuable upon conversion, exchange, or exercise of, or upon purchase
pursuant to, any other Offered Securities will have been duly authorized and reserved for issuance (in each case, within the limits of
the then remaining authorized but unreserved and unissued amounts of such Offered Securities), and any issuance of such Offered Securities
will be effected in accordance with the terms and conditions set forth in such other Offered Securities and the Governing Documents related
thereto, (l) all certificates evidencing any Offered Securities will be in the form required by law and approved for issuance by
the Company, (m) the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the
Delaware General Corporation Law, and (n) the Offered Securities will be duly registered on the books of the transfer agent and registrar
thereof in the name and on behalf of the holders thereof.
We have relied upon certificates of public officials
as to the accuracy of all matters addressed therein and, with respect to certain factual matters, upon certificates of and information
provided by officers and employees of the Company as to the accuracy of such factual matters, in each case without independent verification
thereof or other investigation. We have assumed, without investigation, the following: (a) the genuineness of signatures, including
electronic signatures, appearing upon certifications, documents, and proceedings, (b) that each document submitted to us for review
is accurate and complete, each such document that is an original is authentic and each such document that is a copy conforms to an authentic
original, (c) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced
instrument or agreement or to carry out their role in the transactions contemplated thereby, (d) the truth, accuracy and completeness
of the information, representations and warranties contained in the documents, instruments, certificates and records we have reviewed,
(e) the absence of any undisclosed modifications to the agreements and instruments reviewed by us, (f) that Delaware law will
be chosen to govern each Warrant Agreement, each Rights Agreement, each Purchase Contract Agreement and each Unit Agreement, and all Offered
Securities issued thereunder and/or certificates evidencing such Offered Securities, and (g) that New York law has or will be chosen to
govern the Senior Indenture, the Subordinated Indenture and all Debt Securities issued thereunder.
Without limiting any other qualifications set
forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that (a) provide for the enforcement
of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance
may operate as a waiver, (b) limit the enforcement of provisions of instruments or agreements that purport to require waiver of the
obligations of good faith, fair dealing, diligence and reasonableness, (c) limit the availability of a remedy under certain circumstances
where another remedy has been elected, (d) limit the enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or
inaction involves negligence, recklessness, willful misconduct or unlawful conduct or insofar as such provisions otherwise contravene
public policy, (e) may, where less than all of an instrument or agreement may be unenforceable, limit the enforceability of the balance
of the instrument or agreement to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (f) govern
and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs, (g) may
permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting
a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or it is important under the
circumstances to the aggrieved party that performance occur by the date stated in the instrument or agreement, (h) may require mitigation
of damages, (i) may limit the enforceability of certain waivers, and (j) provide a time limitation after which a remedy may
not be enforced (i.e., statutes of limitation).
Although Debt Securities may be denominated in
currencies or composite currencies other than the United States dollar, we express no opinion as to whether a court would award a judgment
in a currency or composite currency other than United States dollars. Further, we express no opinion with respect to the enforceability
of any provision specifying rates of exchange for, or requiring indemnity against loss in, converting into a specified currency or composite
currency the proceeds or amount of a court judgment in another currency.
Our opinions set forth herein are limited to the
Delaware General Corporation Law and, solely with respect to the Senior Indenture, the Subordinated Indenture and the Debt Securities,
the laws of the State of New York, and we express no opinion as to the effect of any other laws.
This opinion letter is rendered as of the date
first written above, and we assume no responsibility for updating this opinion letter or the opinions set forth herein to take into account
any event, action, interpretation or change in law occurring subsequent to the date hereof that may affect the validity of such opinions.
This opinion letter is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise,
as to any other matters relating to the Company, the Offered Securities or the Governing Documents.
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal Matters”
with respect to the matters stated therein without implying or admitting that we are “experts” within the meaning of the Securities
Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including
this exhibit.
| Very Truly Yours, |
|
| |
|
|
| FAEGRE DRINKER BIDDLE & REATH LLP |
|
| |
|
|
| By: |
/s/ Jonathan R. Zimmerman |
|
| |
Jonathan R. Zimmerman, Partner |
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our reports dated February 23, 2022 with respect
to the consolidated financial statements and internal control over financial reporting of Tactile Systems Technology, Inc. included
in the Annual Report on Form 10-K for the year ended December 31, 2021, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of
our name as it appears under the caption “Experts”.
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
January 18, 2023
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
TACTILE SYSTEMS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
Rule | |
Amount
Registered | |
Proposed
Maximum
Offering
Price Per
Share | |
Maximum
Aggregate
Offering
Price | | |
Fee
Rate | | |
Amount of
Registration
Fee | |
| Fees to Be Paid | |
Equity Other Debt Other Unallocated (Universal Shelf) | |
Common Stock, par value $0.001 per share Preferred Stock, par value $0.001 per share Senior Debt Securities Subordinated Debt Securities Stock Purchase Contracts Warrants Rights Units (4) | |
457(o) | |
(1) | |
(2) | |
$ | 150,000,000 | | |
| 0.0001102 | | |
$ | 16,530 | (3) |
| | |
| |
| |
| |
| |
| |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | |
| |
| | | |
| | | |
$ | 16,530 | |
| | |
Total Fees Previously Paid | |
| |
| | | |
| | | |
| - | |
| | |
Total Fee Offsets (3) | |
| |
| | | |
| | | |
| - | |
| | |
Net Fee Due | |
| |
| | | |
| | | |
$ | 16,530 | |
| (1) |
An indeterminate number of securities or aggregate principal amount, as the case may be, of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of purchase contracts to purchase common stock, preferred stock or debt securities, such indeterminate number of warrants to purchase common stock, preferred stock or debt securities, such indeterminate number of rights and such indeterminate number of units (the “Universal Shelf Securities”), as shall have an aggregate initial offering price not to exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to exceed $150,000,000, less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common stock and preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar transactions. |
| (2) |
The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the sale and issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
| (3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. |
| (4) |
Any securities registered under the registration statement may be sold separately or as units with other securities registered under the registration statement. |
Table 2: Fee Offset Claims and Sources
| | |
Registrant
or Filer
Name | |
Form
or
Filing
Type | |
File
Number | |
Initial
Filing
Date | |
Fee
Offset
Claimed | |
Security
Type
Associated
with Fee
Offset
Claimed | |
Security
Title
Associated
with Fee
Offset
Claimed | |
Unsold
Securities
Associated
with Fee
Offset
Claimed | |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed |
Fee Offset
Claims | |
Tactile Systems Technology, Inc. | |
- | |
- | |
- | |
- | |
- | |
- | |
- | |
- |
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