As filed with the Securities and Exchange
Commission on March 10, 2014
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
Registration Statement
UNDER THE SECURITIES ACT OF 1933
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MDC PARTNERS INC.
(Exact name of Registrant as specified
in its charter)
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Canada
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98-0364441
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(State or Other jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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745 Fifth Avenue
New York, NY 10151
(646) 429-1800
(Address, Including Zip Code, and
Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
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Mitchell Gendel, Esq.
General Counsel
MDC Partners Inc.
745 Fifth Avenue
New York, NY 10151
(646) 429-1803
(Name, Address, Including Zip Code,
and Telephone Number,
Including Area Code, of Agent for Service of Process)
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With a Copy to:
Risë B. Norman, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
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Approximate date of commencement of
proposed sale of the Securities to the public:
From time to time on or after the registration
statement becomes effective.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box:
¨
If any of
the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the “Securities Act”) other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box:
þ
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.
þ
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, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
þ
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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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CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be
Registered(1)(2)
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Proposed Maximum Offering Price per
Unit(1)
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Proposed Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(3)
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Class A Subordinate Voting Shares, no par value
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Preference Shares, no par value
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Debt Securities
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(1)
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Not applicable pursuant to Form S-3 General Instruction II.E. An indeterminate aggregate initial offering price or number of
the securities of each identified class (the “Securities”) is being registered as may from time to time be issued at
indeterminate prices.
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(2)
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Includes such indeterminate amounts of Securities as may be issued upon exercise, conversion or exchange of any Securities
that provide for that issuance. Separate consideration may or may not be received for any of these Securities.
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(3)
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Pursuant to Rules 456(b) and 457(r) under the Securities Act, the Registrant elects to defer payment of all of the registration
fees. Any registration fees will be paid subsequently in advance or on a pay-as-you-go basis.
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PROSPECTUS
MDC
PARTNERS INC.
CLASS A SUBORDINATE
VOTING SHARES
PREFERENCE SHARES
DEBT SECURITIES
We, or a selling stockholder, may offer
and sell from time to time in one or more offerings Class A Subordinate Voting Shares (“Class A Shares”), preference
shares or debt securities in amounts, at prices and on terms determined at the time of any such offering. Each time any shares
of Class A Shares, preference shares or debt securities are offered pursuant to this prospectus, we will provide a prospectus supplement
and attach it to this prospectus.
We will provide the specific terms of the
securities in supplements to this prospectus to the extent those terms are not described in this prospectus or are different from
the terms described in this prospectus. The prospectus supplements may also add to, update or change information contained in this
prospectus. In addition, we may supplement, update or change any of the information contained in this prospectus by incorporating
information by reference in this prospectus. You should read this prospectus, the related supplements and any incorporated documents
carefully before you invest. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
We and the selling stockholders, if any,
may offer the Class A Shares directly to investors, through agents, underwriters or dealers, or through a combination of these
methods, on a continued or delayed basis. Each applicable prospectus supplement will provide the terms of the plan of distribution
relating to the offering. If any agents, dealers or underwriters are involved in the sale of any securities, the applicable prospectus
supplement will set forth their names and any applicable commissions or discounts.
Our Class A Shares are listed on the NASDAQ
(symbol: “MDCA”) and the Toronto Stock Exchange (symbol: “MDZ.A”).
————————————
Investing in our Class A Shares, preference
shares or debt securities involves risks. You should carefully consider the risk factors referred to on page
3 of this
prospectus, in any applicable accompanying prospectus supplement and in the documents incorporated or deemed incorporated by reference
in this prospectus or in any applicable accompanying prospectus supplement before investing in our Class A Shares, preference shares
or debt securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
The date of this
prospectus is March 10, 2014
TABLE
OF CONTENTS
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Page
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ABOUT THIS PROSPECTUS
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ii
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WHERE YOU CAN FIND ADDITIONAL INFORMATION; INCORPORATION OF DOCUMENTS BY REFERENCE
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
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iv
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SUMMARY INFORMATION
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1
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RISK FACTORS
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3
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RATIO OF EARNINGS TO FIXED CHARGES
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4
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USE OF PROCEEDS
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5
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DESCRIPTION OF OUR CAPITAL STOCK
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6
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DESCRIPTION OF OUR DEBT SECURITIES
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9
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SELLING SECURITY HOLDERS
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25
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PLAN OF DISTRIBUTION
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26
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LEGAL MATERS
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28
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EXPERTS
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28
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ENFORCEABILITY OF CIVIL LIABILITIES
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28
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ENFORCEABILITY OF JUDGMENTS
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28
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SIGNATURES
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EXHIBIT INDEX
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) as a “well-known
seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”),
using an “automatic shelf” registration process. Under this shelf registration process, we and/or a selling stockholder,
if applicable, may offer and sell from time to time any of the securities described in this prospectus in one or more offerings
or resales. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities,
we will provide a prospectus supplement and may also provide you with a free writing prospectus that will contain specific information
about the terms of that offering, including the names of any selling stockholders, if applicable. The prospectus supplement or
free writing prospectus, if any, may also add, update or change information contained in this prospectus. Before purchasing any
securities, you should carefully read both this prospectus, any applicable accompanying prospectus supplement and any free writing
prospectus prepared by or on behalf of us, together with the additional information described under the heading “Where You
Can Find Additional Information; Incorporation of Documents by Reference.”
You should rely only on the information
contained or incorporated by reference in this prospectus and any applicable accompanying prospectus supplement or any free writing
prospectus prepared by us. 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 are not making offers to sell the securities in any
jurisdiction where an offer or solicitation is not permitted. The information in this prospectus is accurate only as of the date
on the front cover. You should not assume that the information contained in this prospectus, including any information incorporated
in this prospectus by reference, any applicable accompanying prospectus supplement or any free writing prospectus prepared by us,
is accurate as of any date other than the date on the front of these documents. Our business, financial condition, results of operations
and prospects may have changed since that date. Neither the delivery of this prospectus nor any sale made under it implies that
there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of
this prospectus.
References in this registration statement
on Form S-3 to “MDC Partners,” “MDC,” the “Company,” “we,” “us” and
“our” refer to MDC Partners Inc. and, unless the context otherwise requires or otherwise is expressly stated, its subsidiaries.
All dollar amounts are stated in U.S. dollars
unless otherwise stated.
WHERE YOU CAN FIND ADDITIONAL INFORMATION;
INCORPORATION OF DOCUMENTS BY REFERENCE
Information regarding the Company’s
annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to these reports, will
be made available, free of charge, at the Company’s website at
http://www.mdc-partners.com
, as soon as reasonably
practicable after the Company electronically files such reports with or furnishes them to the SEC. The information found on, or
otherwise accessible through, the Company’s website is not incorporated into, and does not form a part of, this prospectus.
Any document that the Company files with the SEC may also be read and copied at the SEC’s public reference room located at
100 F Street, N.E., Washington, DC 20549. Please call the SEC at 1 (800) SEC-0330 for further information on the public reference
room. The Company’s filings are also available to the public from the SEC’s website at
http://www.sec.gov
.
The SEC allows us to “incorporate
by reference” the information we file with them, which means that we can disclose important information to you, including
important information about, and the financial condition of, MDC Partners Inc. and its consolidated subsidiaries, by referring
you to separate documents. The information incorporated by reference is considered to be part of this prospectus on the date we
file that document with the SEC and any accompanying prospectus supplement, and later information filed with the SEC after the
date of this prospectus will automatically update and, where applicable, supersede any information contained in this prospectus
or incorporated by reference in this prospectus. We incorporate by reference into this prospectus the following documents or information
that we have previously filed with the SEC (other than information deemed furnished and not filed in accordance with SEC rules,
including Items 2.02 and 7.01 of Form 8-K):
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Annual Report on Form 10-K for the fiscal year ended
December 31, 2013, filed on March 10, 2014 (File No. 001-13718) (the “Annual Report”);
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The portions of our Proxy Statement on Schedule 14A
for our 2013 annual meeting of stockholders filed on April 29, 2013 that are incorporated by reference in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2012 (File No. 001-13718);
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Current Report on Form 8-K filed on February 20, 2014
(other than information furnished pursuant to Item 2.02 and Item 7.01 and any related exhibits of such Current Report on Form
8-K, unless expressly stated otherwise therein) (File No. 001-13718);
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The description of our Class A Shares contained in
our Registration Statement on Form S-1 filed on March 28, 2006 (File No. 001-132761); and
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All reports and other documents filed by MDC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent
to the date of this prospectus and any applicable accompanying prospectus supplement and before the termination of the offering
to which this prospectus relates (other than information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on
Form 8-K, unless expressly stated otherwise therein).
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We are not, however, incorporating by reference
any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed”
with the SEC, including our compensation committee report and performance graph or any information furnished pursuant to Items
2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K.
We will provide without charge to each person
to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or all documents referred to above
which have been or may be incorporated by reference into this prospectus, excluding exhibits to those documents unless they are
specifically incorporated by reference into those documents. You may request copies of those documents, at no cost, from MDC by
writing or telephoning at the following address: MDC Partners Inc., 745 Fifth Avenue, New York, NY 10151, telephone number: (646)
429-1845, Attention: Investor Relations.
DISCLOSURE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated
herein by reference contain forward-looking statements. The Company’s representatives may also make forward-looking statements
orally from time to time. Statements in this prospectus or that are incorporated by reference in this prospectus that are not historical
facts, including statements about the Company’s beliefs and expectations, recent business and economic trends, potential
acquisitions, estimates of amounts for deferred acquisition consideration and “put” option rights, constitute forward-looking
statements. These statements are based on current plans, estimates and projections, and are subject to change based on a number
of factors, including those outlined in this section. See “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” in our most recent Annual Report incorporated by reference herein. See “Where You Can Find
Additional Information; Incorporation of Documents by Reference.” Forward-looking statements speak only as of the date they
are made, and the Company undertakes no obligation to update publicly any of them in light of new information or future events,
if any.
Forward-looking statements involve inherent
risks and uncertainties. A number of important factors could cause actual results to differ materially from those contained in
any forward-looking statements. Such risk factors include, but are not limited to, the following:
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risks associated with severe effects of international,
national and regional economic conditions;
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the Company’s ability to attract new clients
and retain existing clients;
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the spending patterns and financial success of the
Company’s clients;
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the Company’s ability to retain and attract key
employees;
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the Company’s ability to remain in compliance with its debt agreements and the Company’s ability to finance its
contingent payment obligations when due and payable, including but not limited to those relating to “put” option rights
and deferred acquisition consideration;
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the successful completion and integration of acquisitions which complement and expand the Company’s business capabilities;
and
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foreign currency fluctuations.
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The Company’s business strategy includes
ongoing efforts to engage in material acquisitions of ownership interests in entities in the marketing communications services
industry. The Company intends to finance these acquisitions by using available cash from operations, from borrowings under its
amended and restated $225 million senior secured revolving credit facility (the “Facility”) as the same may be amended
or replaced from time to time, and through incurrence of bridge or other debt financing, any of which may increase the Company’s
leverage ratios, or by issuing equity, which may have a dilutive impact on existing shareholders proportionate ownership. At any
given time, the Company may be engaged in a number of discussions that may result in one or more material acquisitions. These opportunities
require confidentiality and may involve negotiations that require quick responses by the Company. Although there is uncertainty
that any of these discussions will result in definitive agreements or the completion of any transactions, the announcement of any
such transaction may lead to increased volatility in the trading price of the Company’s securities.
Investors should carefully consider these
risk factors and the additional risk factors outlined in more detail in our most recent annual report on Form 10-K under the caption
“Risk Factors,” in our subsequent quarterly reports on Form 10-Q, any Company filings with the SEC, and the other information
contained in 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 or any free writing prospectus, before acquiring any of such securities.
SUMMARY INFORMATION
MDC is a leading provider of marketing,
activation, communications and marketing effectiveness solutions and services to customers globally with operating units throughout
the world.
MDC’s subsidiaries provide a comprehensive
range of customized marketing, activation, communications and consulting services, including a wide range of advertising and consumer
communication services, media management and effectiveness across all channels, interactive and mobile marketing, direct marketing,
database and customer relationship management, sales promotion, corporate communications, market research, date and analytics and
insights, corporate identity, design and branding, social media, marketing, product and service innovation, ecommerce and other
related services.
MDC’s strategy is to build, grow and
acquire market-leading businesses that deliver innovative, value-added marketing, activation, communications and strategic consulting
services to their clients. MDC Partners strives to be a partnership of marketing communications and consulting companies (or Partners)
whose strategic, creative and innovative solutions are media-agnostic, challenge the status quo and achieve measurable superior
returns on investment and transformative growth and business performance for clients and stakeholders.
MDC’s Corporate Group ensures that
MDC is the most Partner-responsive marketing services network through its strategic mandate to help Partner firms find clients,
talent and tuck under acquisitions, as well as cross-sell services and enhance their culture for innovation and growth. MDC’s
Corporate Group also works directly with Partner firms to expand their offerings through new strategic services, as well as leverage
the collective expertise and scale of the group as a whole. The Corporate Group uses this leverage to provide various shared services
to help reduce costs across the group.
The MDC model is driven by three key elements:
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Perpetual Partnership
. The perpetual partnership creates ongoing alignment of interests to drive performance. The
perpetual partnership model functions by (1) identifying the ‘right’ Partners with a sustainable differentiated position
in the marketplace; (2) creating the ‘right’ Partnership structure generally by taking a majority ownership position
and leaving a substantial noncontrolling equity or economic ownership position in the hands of operating management to incentivize
long-term growth; (3) providing access to more strategic resources, best practices, and leveraging the network’s scale; and
(4) focusing on delivering financial results.
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Entrepreneurialism
. MDC’s Entrepreneurial spirit and that of its Partner firms is optimized through (1) its
unique perpetual partnership model that incentivizes senior-level involvement and ambition; (2) Partner access to shared resources
within the Corporate Group that allow individual firms to focus on client business and company growth; and (3) MDC’s collaborative
creation of customized solutions to support and grow Partner businesses.
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Human and Financial Capital.
The model balances accountability with financial flexibility and meaningful incentives
to support growth.
MDC operates through “Partner”
companies within the following reportable segments:
Strategic Marketing Services
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The Strategic Marketing Services segment generally consists of firms that offer a full suite of integrated marketing communication
and consulting services, including advertising and media, interactive marketing, direct marketing, public relations, corporate
communications, market research, corporate identity and branding, product and service innovation, and sales promotion to national
and global clients. The Strategic Marketing Services segment is comprised of the following agencies: 72andSunny; Allison &
Partners; Anomaly; Attention; Bruce Mau Design; Capital C; Colle + McVoy; Concentric Partners; Crispin Porter + Bogusky; Doner;
Hello Design; HL Group Partners; kbs+; Kwittken; Laird + Partners; The Media Kitchen; Mono Advertising; Redscout; Sloane &
Company; Union; Varick Media Management; Veritas; Vitro and Yamamoto.
Performance Marketing Services
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The Performance Marketing Services segment includes firms that provide consumer insights and analytic solutions to satisfy the
growing need for targetable, measurable solutions or cost effective means of driving return on marketing investment and growth
for regional, national and global clients. The Performance Marketing Services segment is comprised of the following agencies: 6degrees
Communications; Accent; Boom Marketing; Bryan Mills Iradesso; Integrated Media Solutions; Kenna Communications; Northstar Research
Partners; Relevent; RJ Palmer; Source Marketing; TargetCast; TargetCom; Team; Trade X; Maxxcom Global Media Group; Luntz Global
Partners; LocalBizNow and Kingsdale Partners.
MDC was formed by Certificate of Amalgamation
effective December 19, 1986, pursuant to the
Business Corporations Act
(Ontario). Effective December 19, 1986, MDC amalgamated
with Branbury Explorations Limited, and thereby became a public company operating under the name of MDC Corporation. On January
1, 2004, MDC changed its name to its current name, MDC Partners Inc., and on June 28, 2004, MDC was continued under Section 187
of the
Canada Business Corporations Act
, as amended (the “CBCA”). MDC’s registered address is located
at 45 Hazelton Avenue, Toronto, Ontario, M5R 2E3, and head office address is located at 745 Fifth Avenue, New York, NY 10151. Our
website address is
http://www.mdc-partners.com
. Our website is not part of this prospectus.
RISK FACTORS
Investing in our Class A Shares, preference
shares and debt securities involves risk. Prior to making a decision about investing in our Securities, in addition to the risks
and uncertainties discussed above under “Disclosure Regarding Forward-Looking Statements,” you should carefully read
and consider the risks and uncertainties and the risk factors set forth under the caption “Risk Factors” in our most
recent Annual Report and our quarterly reports on Form 10-Q for the quarterly periods subsequent thereto, and the other information
contained in this prospectus, as updated by our subsequent filings under the Exchange Act, and under the caption “Risk Factors”
or any similar caption in the other documents and reports that we file with the SEC after the date of this prospectus that are
incorporated or deemed incorporated by reference in this prospectus as well as any risks and uncertainties and any risk factors
and other information contained and described in any applicable prospectus supplement or any free writing prospectus that we provide
you in connection with an offering of our Securities pursuant to this prospectus. If any of the risks or uncertainties so described
actually occurs, our business, results of operations or financial condition could be materially affected and the trading price
of our Securities could decline. You could lose all or part of your investment. Additionally, the risks and uncertainties discussed
in this prospectus or in any document incorporated by reference into this prospectus are not the only risks and uncertainties that
we face, and our business, financial condition, liquidity and results of operations could be materially adversely affected by other
matters that are not known to us or that we currently do not consider to be material.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our consolidated
ratios of earnings to fixed charges for each of the five most recent fiscal years ended on December 31:
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2013
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2012
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2011
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2010
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2009
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Ratio of earnings to fixed charges
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N/A
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N/A
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N/A
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N/A
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N/A
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Fixed charge deficiency
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$
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131,829
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$
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61,687
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$
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28,057
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$
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1,949
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$
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1,941
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The ratio of earnings to fixed charges is
calculated by dividing earnings by fixed charges. Earnings represent income (loss) from continuing operations attributable to MDC
Partners Inc. plus (1) income tax expense (recovery), (2) noncontrolling interest in earnings of consolidated subsidiaries, (3)
fixed charges and (4) distributions received from equity-method investees, less (a) equity in income (loss) of nonconsolidated
affiliates and (b) noncontrolling interest in earnings of consolidated subsidiaries that have not incurred fixed charges. Fixed
charges consist of interest on indebtedness (expensed or capitalized), amortization of debt discount and expense and premium on
indebtedness (expensed or capitalized) and interest within rent expense. Fixed charge deficiency is the amount by which fixed charges
are in excess of earnings. Our ratios of earnings to combined fixed charges and preferred stock dividends for the periods indicated
above are the same as our ratios of earnings to fixed charges set forth above because we had no preference shares outstanding during
the periods indicated and currently have no preference shares outstanding.
USE OF PROCEEDS
In the case of a sale of securities by us,
the use of proceeds will be specified in the accompanying prospectus supplement. In the case of a sale of securities by any selling
stockholder, we will not receive any of the proceeds from such sale. The selling stockholders will receive all of the net proceeds
from the sale of any of the securities by the selling stockholders.
DESCRIPTION OF OUR CAPITAL STOCK
In this section, we describe material features
and rights of our capital stock. This summary does not purport to be exhaustive and is qualified in its entirety by reference to
applicable law and our a
rticles of
amalgamation (our “Articles of Amalgamation”)
and bylaws (our “Bylaws”), each of which is incorporated by reference as an exhibit to the registration statement of
which this prospectus forms a part.
Authorized Capitalization
The authorized capital of MDC consists of
an unlimited authorized number of Class A Shares, no par value; an unlimited authorized number of Class B Multiple Voting Shares,
no par value, each convertible into one Class A Share (the “Class B Shares”) (the Class A Shares and the Class B Shares
are herein referred to collectively as the “shares”); and an unlimited number of non-voting preference shares, issuable
in series, of which 5,000 Series 1 Preference Shares, 700,000 Series 2 Preference Shares and an unlimited number of Series 3 Preference
Shares have been designated.
As at February 28, 2014, MDC Partners had
outstanding 50,272,247 Class A Shares (including restricted stock awards), 3,755 Class B Shares, no Series 1 Preference Shares,
no Series 2 Preference Shares and no Series 3 Preference Shares. The holders of the Class A Shares are entitled to one vote in
respect of each Class A Share held in connection with each matter to be acted upon at the annual meeting of the Company’s
stockholders and the holders of the Class B Shares are entitled to twenty votes in respect of each Class B Share held in connection
with each matter to be acted upon at the annual meeting of the Company’s stockholders. Approximately 99.9% of the aggregate
voting rights attached to the issued and outstanding shares of MDC Partners are represented by the Class A Shares.
The Articles of Amalgamation of MDC contain
provisions providing that, in the event an offer is made to purchase Class B Shares which must, by reason of applicable securities
legislation or the requirements of a stock exchange on which the Class B Shares are listed, be made to all or substantially all
of the Class B Shares, and which offer is not made on identical terms, as to price per share and percentage of outstanding shares,
to purchase the Class A Shares, the holders of Class A Shares shall have the right to convert such shares into Class B Shares in
certain specified instances, including an offer to purchase Class B Shares that must, by reason of applicable securities legislation
or the requirements of a stock exchange on which the Class B Shares are listed, be made to all or substantially all holders of
Class B Shares who are in a province of Canada to which the requirement applies, and is not made concurrently with an offer to
purchase Class A Shares that is identical to the offer to purchase Class B Shares on the same terms and conditions.
Class A Shares and Class B Shares
Voting Rights
The Class A Shares carry one vote each.
The Class B Shares carry 20 votes each. Generally, all matters to be voted on by stockholders must be approved by a majority, or,
in the case of the election of directors, by a plurality, of the votes entitled to be cast at a meeting at which a quorum is present
by all shares of our Class A Shares and Class B Shares present in person or represented by proxy, voting together as a single class,
subject to any voting rights granted to holders of any then outstanding preference shares.
Dividend Practice
MDC’s practice is to pay dividends
only out of excess free cash flow from operations. MDC is further limited in the extent to which we are able to pay dividends under
the Facility, and the indenture governing the 6.75% Senior Notes due 2020 (the “6.75% Notes”), as the same may be amended
or supplemented from time to time. The payment of any future dividends will be at the discretion of MDC’s board of directors
and will depend upon limitations contained in the Facility and the indenture governing the 6.75% Notes, future earnings, capital
requirements, our general financial condition and general business conditions.
Conversion and Other Rights
The Class A Shares are convertible at the
option of the holder into one Class B Share for each Class A Share after the occurrence of certain events related to an offer to
purchase all Class B Shares, as described above, in “–Authorized Capitalization.” The Class B Shares are convertible
at any time at the option of the holder into one Class A Share for each Class B Share.
The holders of Class A Shares and Class
B Shares are entitled to receive equally, share for share, after providing for preferential payment of the amounts required to
be paid under and in respect of any preference shares ranking in priority, any property that is distributed to the Company’s
stockholders (including any distribution of assets on any liquidation, dissolution or winding up, whether voluntary or involuntary,
or other distribution of assets among stockholders for the purpose of winding up the MDC's affairs).
Holders of Class A Shares and Class B Shares
have no preemptive rights. There are no redemption or sinking fund provisions applicable to the Class A Shares or the Class B Shares.
Holders that are control persons may be
restricted in the manner by which they may trade in securities of the issuer.
Preference Shares
Under our Articles of Amalgamation, our
board of directors has the authority, without further stockholder action, to issue from time to time, non-voting preference shares
in one or more series and for such consideration as may be fixed from time to time by our board of directors. Our board also has
the authority to fix and determine, in the manner provided by law, the relative rights and preferences of the shares of any series
so established, such as dividend rights. Our Articles of Amalgamation authorize the issuance of an unlimited number of non-voting
preference shares. Prior to the issuance of each series of non-voting preference shares, our board will adopt resolutions creating
and designating the series as a series of such shares. Neither our Articles of Amalgamation nor our Bylaws contain a restriction
on our ability to repurchase or redeem our non-voting preference shares while there is any arrearage in the payment of dividends
or sinking fund installments. However, our ability to purchase, redeem or otherwise acquire or retire for value our shares is subject
to limitations contained in our debt instruments.
If we offer preference shares, the applicable
prospectus supplement will describe the specific terms of the preference shares offered through that prospectus supplement, as
well as any general terms described in this section that will not apply to those preference shares. In the applicable prospectus
supplement, we will also discuss any material U.S. federal income tax considerations applicable to the preference shares. We will
file a copy of the certificate of designations that contains the terms of each new series of preference shares with the SEC each
time we issue a new series of preference shares. Each certificate of designations will establish the number of shares included
in a designated series and fix the designation, powers, privileges, preferences and rights of the shares of each series as well
as any applicable qualifications, limitations or restrictions. You should refer to the applicable certificate of designations as
well as our Articles of Amalgamation, as amended, before deciding to buy our preference shares as described in the applicable prospectus
supplement.
Limitation of Director and Officer
Liability
The CBCA provides generally that a corporation
may indemnify a director or officer of the corporation (a former director or officer of the corporation, or another individual
who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of
another entity) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by the director or officer in respect of any civil, criminal, administrative, investigative or other proceeding to which
he or she is made a party by reason of being a director or officer, where the director or officer acted honestly and in good faith
with a view to the best interests of the corporation and, in the case of a criminal or administrative action or proceeding enforced
by a monetary penalty, the director or officer had reasonable grounds for believing that his or her conduct was lawful. Where such
an officer or director was not judged by the court or other competent authority to have committed any fault or omitted to do anything
he or she ought to have done, such officer or director is entitled to indemnification from the corporation for such costs, charges
and expenses which were reasonably incurred by the officer or director in connection with the defense of any civil, criminal, investigative
or other proceeding to which he or she was subject by reason of being a director or officer.
The Bylaws of MDC provide that, except as
otherwise provided for in the CBCA, no director or officer shall be liable for the acts, receipts, neglects or defaults of any
other director, officer, employee, or agent, or for joining in any receipt or other act for conformity, or for any loss, damage
or expense happening to the Company through the insufficiency or deficiency of title to any property acquired for or on behalf
of the Company, or for the insufficiency or deficiency of any security in or upon which any of the moneys of or belonging to the
Company shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person, firm
or corporation with whom or which any of the moneys, securities or effects of the Company shall be lodged or deposited, or for
any loss, conversion, misapplication or misappropriation of or any damage resulting from any dealings with any moneys, securities
or other assets belonging to the Company, or for any other loss, damage or misfortune whatsoever which shall happen in the execution
of the duties of his or her respective office or trust or in relation thereto, unless the same happen by or through his or her
failure to exercise the powers and to discharge the duties of his or her office honestly and in good faith with a view to the best
interests of the Company and in connection therewith to exercise the care, diligence and skill that a reasonably prudent person
would exercise in comparable circumstances. The directors for the time being of the Company shall not be under any duty or responsibility
in respect of any contract, act or transaction whether or not made, done or entered into in the name or on behalf of the Company,
except such as shall have been submitted to and authorized or approved by the board of directors. If any director or officer of
the Company shall be employed by or shall perform services for the Company otherwise than as a director or officer or shall be
a member of a firm or a stockholder, director or officer of a company which is employed by or performs services for the Company,
the fact of his or her being a director or officer of the Company shall not disentitle such director or officer or such firm or
company, as the case may be, from receiving proper remuneration for such services.
In addition, under the Company’s Bylaws,
subject to Section 124 of the CBCA, every director and officer of the Company and his or her heirs, executors, administrators and
other legal personal representatives shall from time be indemnified and saved harmless by the Company from and against (a) any
liability and all costs, charges and expenses that he or she sustains or incurs in respect of any action, suit or proceeding that
is proposed or commenced against him or her for or in respect of anything done or permitted by him or her in respect of the execution
of the duties of his or her office; and (b) all other costs, charges and expenses that he or she sustains or incurs in respect
of the affairs of the Company. The Company shall also indemnify any such person in other circumstances as the CBCA permits or requires.
Transfer Agent and Registrar
The transfer agent and registrar for the
Class A Shares is CST Trust Company.
Listing
Our Class A Shares are listed on the NASDAQ
(symbol: “MDCA”) and the Toronto Stock Exchange (symbol: “MDZ.A”).
DESCRIPTION OF OUR DEBT SECURITIES
We have summarized below general terms and
conditions of the debt securities that we may offer and sell pursuant to this prospectus. The debt securities will either be senior
debt securities, senior subordinated debt securities or subordinated debt securities and, unless otherwise specified in the applicable
prospectus supplement, unsecured, and may be issued in one or more series. When we offer to sell a particular series of debt securities,
we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus, including the terms,
if any, on which a series of debt securities may be convertible into or exchangeable for our Class A Shares, preference shares
or other debt securities. We will also indicate in the applicable prospectus supplement whether the general terms and conditions
described in this prospectus apply to the series of debt securities. In addition, the terms and conditions of the debt securities
of a series may be different in one or more respects from the terms and conditions described below. If so, those differences will
be described in the applicable prospectus supplement. We may, but need not, describe any additional or different terms and conditions
of such debt securities in an annual report on Form 10-K, a quarterly report on Form 10-Q or a current report on Form 8-K filed
with the SEC, the information in which would be incorporated by reference in this prospectus and such report will be identified
in the applicable prospectus supplement.
We will issue senior debt securities in
one or more series under a separate base indenture, as supplemented or amended from time to time, between us and The Bank of New
York Mellon, as trustee. We will issue senior subordinated debt securities and subordinated debt securities in one or more series
under a separate base indenture, as supplemented or amended from time to time, between us and The Bank of New York Mellon, as trustee.
For ease of reference, we refer herein to the base indenture relating to any senior debt securities, as amended or supplemented,
as the senior indenture, to the base indenture relating to any senior subordinated debt securities or subordinated debt securities,
as amended or supplemented, as the subordinated indenture, and collectively, as the indentures and to the trustee under each respective
indenture as the trustee. The following summary of provisions of the indentures does not purport to be complete and is subject
to, and qualified in its entirety by reference to, all of the provisions of the indentures, including definitions therein of certain
terms.
This summary may not contain all of the
information that you may find useful.
The terms and conditions of the debt securities
of each series will be set forth in those debt securities and in the applicable indenture. For a comprehensive description of any
series of debt securities being offered to you pursuant to this prospectus, you should read both this prospectus and the applicable
prospectus supplement.
We have filed the base indenture for the
senior debt securities, the base indenture for the senior subordinated debt securities and the subordinated debt securities and
a form of each debt security as exhibits to the registration statement of which this prospectus forms a part. The supplemental
indenture or officers’ certificate, reflecting the specific terms and provisions of that series of debt securities, will
be filed with the SEC in connection with each offering and will be incorporated by reference in the registration statement of which
this prospectus forms a part.
You may obtain a copy of the indentures
and any form of debt security that has been filed in the manner described under “Where You Can Find Additional Information;
Incorporation of Documents by Reference.” Capitalized terms used and not defined in this summary have the meanings specified
in the applicable indenture. For purposes of this section of this prospectus, references to “we,” “us”
and “our” are to MDC Partners Inc. and not to any of its subsidiaries. References to the “applicable prospectus
supplement” are to the prospectus supplement to this prospectus that describes the specific terms and conditions of a series
of debt securities.
General
We may offer the debt securities from time
to time in as many distinct series as we may determine. All debt securities will be either our senior obligations, senior subordinated
obligations or subordinated obligations, as the case may be.
The applicable indenture does not limit
the amount of debt securities that we may issue under such indenture. We may, without the consent of the holders of the debt securities
of any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities
of the series (except for the public offering price, the issue date, the first interest payment date and the initial interest accrual
date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series
previously offered and sold under a particular indenture.
The debt securities of each series will
be issued in fully registered form without interest coupons. We currently anticipate that the debt securities of each series offered
and sold pursuant to this prospectus will be issued as global debt securities as described under “—Book-Entry; Delivery
and Form; Global Securities” and will trade in book-entry form only.
Debt securities denominated in U.S. dollars
will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified in
the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or composite currency, the
applicable prospectus supplement will specify the denomination or denominations in which those debt securities will be issued.
Unless otherwise specified in the applicable
prospectus supplement, we will repay the debt securities of each series at 100% of their principal amount, together with accrued
and unpaid interest thereon at maturity, except if those debt securities have been previously redeemed or purchased and cancelled.
Debt securities may be issued as original
issue discount securities to be sold at a substantial discount below their principal amount. In the event of an acceleration of
the maturity of any original issue discount security, the amount payable to the holder upon acceleration will be determined in
the manner described in the applicable prospectus supplement. Certain U.S. federal income tax considerations applicable to original
issue discount securities will be described in the applicable prospectus supplement.
If the purchase price of any debt securities
is payable in a foreign currency or if the principal of, or premium, if any, or interest, if any, on any debt securities is payable
in a foreign currency, the specific terms of those debt securities and the applicable foreign currency will be specified in the
prospectus supplement relating to those debt securities.
The terms of the debt securities of any
series may differ from the terms of the debt securities of any other series, and the terms of particular debt securities within
any series may differ from each other. Unless otherwise expressly provided in the prospectus supplement relating to any series
of debt securities, we may, without the consent of the holders of the debt securities of any series, reopen an existing series
of debt securities and issue additional debt securities of that series.
Unless otherwise described in a prospectus
supplement relating to any series of debt securities and except to the limited extent set forth below under “—Consolidation,
Merger and Sale of Assets,” there will be no limitation upon our ability to incur indebtedness or other liabilities or that
would afford holders of debt securities protection in the event of a business combination, takeover, recapitalization or highly
leveraged or similar transaction involving us. Accordingly, we may in the future enter into transactions that could increase the
amount of our consolidated indebtedness and other liabilities or otherwise adversely affect our capital structure or credit rating
without the consent of the holders of the debt securities of any series.
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of the Indentures
Each indenture provides that debt securities
may be issued under such indenture from time to time in one or more series at par or at a discount. For each series of debt securities,
this prospectus and the applicable prospectus supplement will describe the particular terms and conditions of that series, which
may include, but are not limited to, the following:
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the title of the series;
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the price or prices at which debt securities of the series will be issued;
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the maximum aggregate principal amount, if any, established for debt securities of the series;
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whether the debt securities of the series will rank as senior securities, senior subordinated securities or subordinated securities
or any combination thereof and the terms of such subordination;
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the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that
debt security (or one or more predecessor debt securities) is registered at the close of business on the regular record date for
such interest;
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the date or dates on which the principal of any debt securities of the series will be payable or the method used to determine
or extend those dates;
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the rate or rates, which may be fixed or variable, at which any debt securities of the series will bear interest, if any, the
date or dates from which any such interest will accrue, the interest payment dates on which any such interest will be payable,
the method or methods used to determine any variable rates and the regular record date for any such interest payable on any interest
payment date;
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the basis used to calculate interest, if any, on the debt securities of the series if other than a 360-day year of twelve 30-day
months;
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the place or places where the principal of and premium, if any, and interest on any debt securities of the series will be payable
and the manner in which any payment may be made;
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the period or periods within which the price or prices at which and the terms and conditions upon which any debt securities
of the series may be redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner in which
any election by us to redeem the debt securities will be evidenced;
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our obligation or right, if any, to redeem or purchase any debt securities of the series pursuant to any sinking fund or at
the option of the holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant to such obligation;
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if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any
debt securities of the series will be issuable;
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if the amount of principal of or premium, if any, or interest on any debt securities of the series may be determined with reference
to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts will be determined;
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if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest
on any debt securities of the series will be payable and the manner of determining the equivalent thereof in U.S. dollars for any
purpose;
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if the principal of or premium, if any, or interest on any debt securities of the series is to be payable, at our election
or the election of the holder thereof, in one or more currencies or currency units other than that or those in which such debt
securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or
interest on such debt securities as to which such election is made will be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable (or the manner in which such amount will be determined);
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if other than the entire principal amount thereof, the portion of the principal amount of any debt securities of the series
which will be payable upon declaration of acceleration of the maturity thereof pursuant to the indenture;
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if the principal amount payable at the stated maturity of any debt securities of the series will not be determinable as of
any one or more dates prior to the stated maturity, the amount which will be deemed to be the principal amount of such debt securities
as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which will be due and payable
upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any date prior to the stated maturity
(or, in any such case, the manner in which such amount deemed to be the principal amount will be determined);
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if other than by a board resolution, the manner in which any election by us to defease any debt securities of the series pursuant
to the applicable indenture will be evidenced; whether any debt securities of the series other than debt securities denominated
in U.S. dollars and bearing interest at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the
case of debt securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the debt securities
of the series, in whole or any specified part, will not be defeasible pursuant to the indenture;
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if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global
securities and, in such case, the respective depositaries for such global securities and the form of any legend or legends which
will be borne by any such global securities, and any circumstances in which any such global security may be exchanged in whole
or in part for debt securities registered, and any transfer of such global security in whole or in part may be registered, in the
name or names of persons other than the depositary for such global security or a nominee thereof;
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any addition to, deletion from or change in the events of default applicable to any debt securities of the series;
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any change in the right of the trustee or the requisite holders of such debt securities to declare the principal amount thereof
due and payable;
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any addition to, deletion from or change in the covenants applicable to debt securities of the series;
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whether any debt securities of the series will be issued in temporary or permanent global form and, if so, the identity of
the depositary for the global debt securities if other than The Depository Trust Company (“DTC”);
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if the debt securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property
of any person (including us), the terms and conditions upon which such debt securities will be so convertible or exchangeable;
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whether the debt securities of the series will be guaranteed by any persons and, if so, the identity of such persons, the terms
and conditions upon which such debt securities will be guaranteed and, if applicable, the terms and conditions upon which such
guarantees may be subordinated to other indebtedness of the respective guarantors;
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whether the debt securities or guarantees of the series will be secured by any collateral and, if so, the terms and conditions
upon which such debt securities or guarantees will be secured and, if applicable, upon which such liens may be subordinated to
other liens securing other indebtedness of us or of any guarantor;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents;
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any listing of the debt securities on any securities exchange; and
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any other terms of the debt securities of the series and the guarantees thereof (which terms will not be inconsistent with
the provisions of the applicable indenture, except as permitted thereunder).
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Interest
In the applicable prospectus supplement,
we will designate the debt securities of a series as being either debt securities bearing interest at a fixed rate of interest
or debt securities bearing interest at a floating rate of interest at the rate specified or determined in the applicable prospectus
supplement. Each debt security will begin to accrue interest from the date on which it is originally issued. Interest on each such
debt security will be payable in arrears on the interest payment dates set forth in the applicable prospectus supplement and at
maturity or, if earlier, the redemption date described below. Interest will be payable to the holder of record of the debt securities
at the close of business on the record date for each interest payment date, which record dates will be specified in the applicable
prospectus supplement.
Optional Redemption
Redemption at Our Option
If specified in the applicable prospectus
supplement, we may elect to redeem all or part of the outstanding debt securities of a series from time to time before the maturity
date of the debt securities of that series. Upon such election, we will notify the trustee of the redemption date and the principal
amount of debt securities of the series to be redeemed. If less than all the debt securities of the series are to be redeemed,
the particular debt securities of that series to be redeemed will be selected by the trustee on a
pro rata
basis, by lot
or by such method as the trustee deems fair and appropriate (subject to the procedures of DTC). The applicable prospectus supplement
will specify the redemption price for the debt securities to be redeemed (or the method of calculating such price), in each case
in accordance with the terms and conditions of those debt securities.
Notice of redemption will be given to each
holder of the debt securities to be redeemed not less than 30 nor more than 60 days prior to the date set for such redemption.
This notice will include the following information, as applicable: the redemption date; the redemption price (or the method of
calculating such price); if less than all of the outstanding debt securities of such series are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of the particular debt securities to be redeemed; the
place or places where such debt securities are to be surrendered for payment of the redemption price; the terms of conversion of
the securities; any restrictions or conditions to redemption; and the CUSIP number of the debt securities to be redeemed.
By no later than 11:00 a.m. (New York City
time) on the redemption date, we will deposit or cause to be deposited with the trustee or with a paying agent (or, if we are acting
as our own paying agent with respect to the debt securities being redeemed, we will segregate and hold in trust as provided in
the applicable indenture) an amount of money sufficient to pay the aggregate redemption price of, and (except if the redemption
date shall be an interest payment date or the debt securities of such series provide otherwise) accrued interest on, all of the
debt securities or the part thereof to be redeemed on that date. On the redemption date, the redemption price will become due and
payable upon all of the debt securities to be redeemed, and interest, if any, on the debt securities to be redeemed will cease
to accrue from and after that date. Upon surrender of any such debt securities for redemption, we will pay those debt securities
surrendered at the redemption price together, if applicable, with accrued interest to the redemption date.
Any debt securities to be redeemed only
in part must be surrendered at the office or agency established by us for such purpose, and we will execute, and the trustee will
authenticate and deliver to a holder without service charge, new debt securities of the same series and of like tenor, of any authorized
denominations as requested by that holder, in a principal amount equal to and in exchange for the unredeemed portion of the debt
securities that holder surrenders.
Repayment at Holder’s Option
If specified in the applicable prospectus
supplement, the holders of the debt securities of a series will have the option to elect repayment of those debt securities by
us prior to the stated maturity of the debt securities of that series at a time or times and subject to the conditions specified
in the applicable prospectus supplement. If the holders of those debt securities have that option, the applicable prospectus supplement
will specify the optional repayment date or dates on which the debt security may be repaid and the optional repayment price, or
the method by which such price will be determined. The optional repayment price is the price at which, together with accrued interest
to the optional repayment date, the debt security may be repaid at the holder’s option on each such optional repayment date.
Any tender of a debt security by the holder
for repayment will be irrevocable. Any repayment option of a holder may be exercised by the holder of debt securities for less
than the entire principal amount of the debt security; provided that the principal amount of the debt security remaining outstanding
after repayment will be an authorized denomination. Upon such partial repayment, the debt securities will be canceled and new debt
securities for the remaining principal amount will be issued in the name of the holder of the repaid debt securities.
If debt securities are represented by a
global security as described under “—Book-Entry; Delivery and Form; Global Securities,” the securities depository
for the global security or its nominee will be the holder of the debt security and, therefore, will be the only person that can
exercise a right to repayment. In order to ensure that the depository or its nominee will timely exercise a right to repayment
relating to a particular debt security, the beneficial owner of the debt security must instruct the broker or other direct or indirect
participant in the depository through which it holds an interest in the debt security to notify the depository of its desire to
exercise a right to repayment by the appropriate cut-off time for notifying the participant. Different firms have different cut-off
times for accepting instructions from their customers. Accordingly, you should consult the broker or other direct or indirect participant
through which you hold an interest in a debt security in order to ascertain the cut-off time by which such an instruction must
be given for timely notice to be delivered to the appropriate depository.
Payment and Transfer or Exchange
Principal of and premium, if any, and interest
on the debt securities of each series will be payable, and the debt securities may be surrendered, exchanged or transferred, at
the office or agency maintained by us for such purpose (which initially will be the trustee’s office located at 101 Barclay
Street, 7W, New York, New York 10286, Attention: Corporate Trust Division – Corporate Finance Unit). Payment of principal
of and premium, if any, and interest on a global security registered in the name of or held by DTC or its nominee will be made
in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global security. If
any of the debt securities is no longer represented by a global security, payment of interest on certificated debt securities in
definitive form may, at our option, be made by check mailed directly to holders at their registered addresses or by wire transfer
to an account maintained by the payee with a bank located in the United States. See “—Book-Entry; Delivery and Form;
Global Securities.” A holder may transfer or exchange any certificated debt securities in definitive form at the same location.
No service charge will be made for any registration of transfer or exchange of debt securities, but we may require payment of a
sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith.
We are not required to transfer or exchange
any debt security selected for redemption for a period of 15 days before mailing of a notice of redemption of the debt security
to be redeemed.
The registered holder of a debt security
will be treated as the owner of it for all purposes.
Subject to applicable abandoned property
laws, all amounts of principal of and premium, if any, or interest on the debt securities paid by us that remain unclaimed two
years after such payment was due and payable will be repaid to us, and the holders of such debt securities will thereafter look
solely to us for payment.
Ranking
Unless otherwise provided in the applicable
prospectus supplement, the senior debt securities will be our unsecured senior obligations and will rank equally in right of payment
to all of our other unsecured senior indebtedness. Unless otherwise provided in the applicable prospectus supplement, the senior
subordinated debt securities will be our unsecured senior subordinated obligations and will rank junior in right of payment to
all of our unsecured senior indebtedness, equally in right of payment to all of our other unsecured senior subordinated indebtedness
and senior in right of payment to all of our unsecured subordinated indebtedness. Unless otherwise provided in the applicable prospectus
supplement, the subordinated debt securities will be our unsecured subordinated obligations and will rank junior in right of payment
to all of our unsecured senior and senior subordinated indebtedness and equally in right of payment to all of our other unsecured
subordinated indebtedness.
Any debt securities that are not guaranteed
will be effectively subordinated to all existing and future liabilities and any preferred equity of our subsidiaries. These liabilities
may include indebtedness, trade payables, other guarantees, lease obligations, swaps and letter of credit obligations. Therefore,
our rights and the rights of our creditors, including the holders of our unguaranteed debt securities, to participate in the assets
of any subsidiary upon that subsidiary’s bankruptcy, liquidation, dissolution, reorganization or similar circumstances will
be subject to the prior claims of the subsidiary’s creditors, except to the extent that we may be a creditor with recognized
claims against that subsidiary. Any debt securities that are guaranteed on an unsecured basis will be effectively subordinated
to the secured indebtedness of that guarantor to the extent of the value of the collateral securing such indebtedness. Therefore,
if we are a creditor of one or more of our subsidiaries that provide an unsecured guarantee of our debt securities, our claims
will be effectively subordinated to any security interest in, or mortgages or other liens on, the assets of the subsidiary and
would be subordinated to any indebtedness of the subsidiary senior to that held by us.
The unsecured debt securities will be effectively
subordinated to all of our existing and future secured indebtedness to the extent of the value of the collateral securing that
indebtedness. Consequently, in the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding, the holders
of such secured indebtedness will be entitled to proceed directly against the collateral that secures that secured indebtedness,
and such collateral will not be available for satisfaction of any amounts owed by us for our unsecured indebtedness, including
any unsecured debt securities, until that secured indebtedness is satisfied in full.
Unless otherwise provided in the applicable
prospectus supplement, the indentures will not limit our or our subsidiaries’ ability to incur additional secured or unsecured
indebtedness, guarantees or other liabilities.
Guarantees
Any series of our debt securities may be
guaranteed by one or more of our subsidiaries. If we wish to issue a series of guaranteed debt securities, we will file a post-effective
amendment to the registration statement of which this prospectus is a part identifying the guarantors and adding guarantees as
an additional security. Additionally, if we issue a series of guaranteed debt securities, a description of some or all of the terms
of the guarantees of those debt securities, including the specific guarantors, will be set forth in the applicable prospectus supplement.
Subordination
Upon any distribution of our assets upon
our dissolution, winding up, liquidation or reorganization, the payment of the principal of, and premium, if any, and interest
on the senior subordinated debt securities and the subordinated debt securities will be subordinated to the extent provided in
the subordinated indenture or as described in the applicable prospectus supplement in right of payment to the prior payment in
full of all senior indebtedness, including the senior debt securities. Our obligation to make payment of principal (and premium,
if any) or interest on the senior subordinated debt securities and the subordinated debt securities will not otherwise be affected.
Unless otherwise indicated in a prospectus
supplement, no payment on account of principal (and premium, if any), sinking funds or interest may be made on the senior subordinated
debt securities or the subordinated debt securities at any time when there is a default in the payment of principal (and premium,
if any), interest or certain other obligations on senior indebtedness. In addition, the applicable prospectus supplement for each
series of senior subordinated debt securities and subordinated debt securities may provide that payments on account of principal,
any premium, if any, or interest in respect of such senior subordinated debt securities and subordinated debt securities may be
delayed or not paid under the circumstances and for the periods specified in that prospectus supplement. Unless otherwise indicated
in a prospectus supplement, notwithstanding the foregoing, in the event that any payment by us described in the foregoing sentence
is received by the trustee under the subordinated indenture or the holders of any of the senior subordinated debt securities or
the subordinated debt securities, as applicable, before all senior indebtedness is paid in full, that payment or distribution will
be paid over to the holders of such senior indebtedness or on their behalf for application to the payment of all such senior indebtedness
remaining unpaid until all such senior indebtedness has been paid in full, after giving effect to any concurrent payment or distribution
to the holders of such senior indebtedness. Subject to payment in full of our senior indebtedness, the holders of the senior subordinated
debt securities and the subordinated debt securities will be subrogated to the rights of the holders of the senior indebtedness
to the extent of payments made to the holders of such senior indebtedness out of the distributive share of the senior subordinated
debt securities and the subordinated debt securities.
By reason of this subordination, in the
event of a distribution of assets upon insolvency, certain of our general creditors may recover more, ratably, than holders of
the senior subordinated debt securities and the subordinated debt securities. The subordinated indenture provides that the subordination
provisions will not apply to money and securities held in trust under the satisfaction and discharge and the legal defeasance provisions
of the subordinated indenture.
If this prospectus is being delivered in
connection with the offering of a series of senior subordinated debt securities or subordinated debt securities, the accompanying
prospectus supplement or the information incorporated by reference therein will set forth the approximate amount of senior indebtedness
outstanding as of a recent date. “Senior indebtedness” with respect to any series of senior subordinated debt securities
or subordinated debt securities will have the meaning specified in the applicable prospectus supplement for that series.
Conversion and Exchange
The terms, if any, on which debt securities
of any series are convertible into or exchangeable for our Class A Shares or any other securities or property will be set forth
in the applicable prospectus supplement. Such terms may include provisions for conversion or exchange, either mandatory, at the
option of the holders or at our option. Unless otherwise expressly stated in the applicable prospectus supplement, references in
this prospectus and any prospectus supplement to the conversion or exchange of debt securities of any series for our Class A Shares
or other securities or property shall be deemed not to refer to or include any exchange of any debt securities of a series for
other debt securities of the same series.
Covenants
Each indenture sets forth limited covenants,
including the covenant described below, that will apply to each series of debt securities issued under such indenture, unless otherwise
specified in the applicable prospectus supplement.
The debt securities may contain certain
additional restrictive covenants to be set forth in an applicable officers’ certificate or supplemental indenture.
Consolidation, Merger and Sale of Assets
Unless otherwise specified in the applicable
prospectus supplement, each indenture provides that we may consolidate with or merge with or into any other person, and may sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all of our properties and assets to another person;
provided that the following conditions are satisfied:
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we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a person organized
and existing under the laws of the United States of America, any state thereof or the District of Columbia or Canada or any province
or territory thereof and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under
the debt securities and the applicable indenture and, for each security that by its terms provides for conversion, provide for
the right to convert such security in accordance with its terms;
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immediately after giving effect to such transaction and the assumption contemplated by the previous clause above, no default
or event of default under the applicable indenture has occurred and is continuing; and
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the trustee receives from us an officers’ certificate and an opinion of counsel that the merger, sale, assignment, consolidation,
transfer, lease, conveyance or other disposition and such supplemental indenture, as the case may be, complies with the applicable
provisions of the applicable indenture and all conditions precedent provided for in the indenture relating to such transaction
have been complied with.
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If we consolidate or merge with or into
any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance with the
applicable indenture, the Successor will be substituted for us in such indenture, with the same effect as if it had been an original
party to such indenture. As a result, the Successor may exercise our rights and powers under such indenture, and we will be released
from all our liabilities and obligations under such indenture and under the debt securities.
Any substitution of the Successor for us
might be deemed for U.S. federal income tax purposes to be an exchange of the debt securities for “new” debt securities,
resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences to beneficial owners
of the debt securities. Holders should consult their own tax advisors regarding the tax consequences of any such substitution.
For purposes of this covenant, “person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity.
Events of Default
Unless otherwise specified in the applicable
prospectus supplement, each of the following events are defined in the applicable indenture as an “event of default”
(whatever the reason for such event of default and whether or not it will be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body) with respect to the debt securities of any series:
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(1)
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default in the payment of any installment of interest on any debt securities of that series for 30 days after becoming due;
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(2)
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default in the payment of principal of or premium, if any, on any debt securities of that series when it becomes due and payable
at its stated maturity, upon redemption, upon declaration or otherwise;
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(3)
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default in the delivery when due of any securities, cash or other property (including, without limitation, any Class A Shares)
when required to be delivered upon conversion of any convertible debt security of that series or upon the exchange of any debt
security of that series which is exchangeable for Class A Shares or other securities or property (other than an exchange of debt
securities of that series for other debt securities of the same series);
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(4)
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default in the deposit of any sinking fund payment, when and as due by the terms of any debt securities of that series;
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(5)
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default in the performance, or breach, of any covenant or agreement of ours in the applicable indenture with respect to the
debt securities of that series (other than as referred to in clause (1), (2), (3) or (4) above), which continues for a period of
60 days (except that, in the case of a default in the performance or breach of a reporting covenant, such period shall be 120 days)
after written notice to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of that series;
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(6)
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if the debt securities of that series are guaranteed debt securities, the guarantee of the debt securities of that series by
any guarantor shall for any reason cease to be, or shall for any reason be asserted in writing by such guarantor or us not to be,
in full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by the applicable
indenture;
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(7)
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pursuant to or within the meaning of the Bankruptcy Law, we:
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commence a voluntary case or proceeding;
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consent to the entry of an order for relief against us in an involuntary case or proceeding;
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consent to the appointment of a Custodian of us or for all or substantially all of our property;
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make a general assignment for the benefit of our creditors;
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file a petition in bankruptcy or answer or consent seeking reorganization or relief;
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consent to the filing of such petition or the appointment of or taking possession by a Custodian; or
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take any comparable action under any foreign laws relating to insolvency;
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(8)
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
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is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt;
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appoints a Custodian of us or for all or substantially all of our property; or
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orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws), and the order or decree
remains unstayed and in effect for 60 days; or
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(9)
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any other event of default provided with respect to debt securities of that series occurs.
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“Bankruptcy Law” means Title
11, United States Code or any similar federal or state, Canadian, provincial or other foreign law for the relief of debtors.
“Custodian” means any custodian,
receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to debt
securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization
described in clauses (7) and (8) above) occurs and is continuing, the trustee by notice to us, or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that series by notice to us and the trustee, may declare the principal
of and premium, if any, and accrued and unpaid interest on all the debt securities of that series to be due and payable. Upon such
a declaration, such principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default
relating to certain events of bankruptcy, insolvency, or reorganization described in clauses (7) or (8) above occurs and is continuing,
the principal of and premium, if any, and accrued and unpaid interest on the debt securities of that series will become and be
immediately due and payable without any declaration or other act on the part of the trustee or any holders.
The holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration and its
consequences, if we have deposited certain sums with the trustee, all events of default with respect to the debt securities of
that series, other than the non-payment of the principal or interest which have become due solely by such acceleration, have been
cured or waived and the rescission would not conflict with any judgment or decree, as provided in the applicable indenture.
An event of default for a particular series
of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under any
indenture.
We are required to furnish the trustee annually
a statement by certain of our officers to the effect that, to their knowledge, we are not in default in the fulfillment of any
of our obligations under the indentures or, if there has been a default in the fulfillment of any such obligation, specifying each
such default and the status of each such default.
No holder of any debt securities of any
series will have any right to institute any judicial or other proceeding with respect to the applicable indenture, or for the appointment
of a receiver or trustee, or for any other remedy unless:
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(1)
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an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing
event of default with respect to the debt securities of that series;
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(2)
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the holders of not less than 25% of the aggregate principal amount of the outstanding debt securities of that series have requested
the trustee to institute proceedings in respect of such event of default;
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(3)
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such holders have offered to the trustee indemnity satisfactory to it against its costs, expenses and liabilities in complying
with such request;
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(4)
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the trustee has failed to institute proceedings within 60 days after the receipt of such notice, request and offer of indemnity;
and
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(5)
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no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series.
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The holders of a majority in aggregate principal
amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series
or exercising any trust or power conferred to the trustee, and to waive certain defaults. The indentures provide that, if an event
of default has occurred and is continuing, the trustee shall exercise such of the rights and powers vested in it by the applicable
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. The trustee will be under no obligation to exercise any of its rights or powers under
the applicable indenture at the request of any of the holders of the debt securities of a series unless they will have offered
to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request.
Notwithstanding the foregoing, the holder
of any debt security will have an absolute and unconditional right to receive payment of the principal of and premium, if any,
and interest on that debt security on or after the due dates expressed in that debt security, and, in the case of any debt security
which is convertible into or exchangeable for other securities or property, to convert or exchange, as the case may be, that debt
security in accordance with its terms, and to institute suit for the enforcement of those payments and any right to effect such
conversion or exchange.
Modification and Waivers
Modification and amendments of an indenture
and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of that series affected thereby; provided, however, that no such
modification or amendment may, without the consent of the holder of each outstanding debt security of that series affected thereby:
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change the stated maturity of the principal of, or installment of interest on, any debt security;
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reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be
due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on any debt security
or change or have the effect of changing the time for payment of interest, including defaulted interest, if any, on any debt security
under such indenture;
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reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must
be redeemed;
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change the coin or currency in which the principal of or premium, if any, or interest on any debt security is payable;
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make any change in provisions of such indenture entitling each holder to receive payment of principal of, premium, if any,
and interest on such debt securities or to institute suit for the enforcement of any payment on or after the stated maturity of
any debt security (or, in the case of redemption, on or after the redemption date);
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reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order
to take certain actions;
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reduce the requirements for quorum or voting by holders of debt securities in such indenture or the debt security;
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modify any of the provisions in such indenture regarding the waiver of past defaults and the waiver of certain covenants by
the holders of debt securities except to increase any percentage vote required or to provide that certain other provisions of such
indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby;
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make any change that adversely affects in any material respect the right to convert or exchange any debt security or decreases
the conversion or exchange rate or increases the conversion price of any convertible or exchangeable debt security, unless such
decrease or increase is permitted by the terms of the debt securities;
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release any guarantor from any of its obligations under any of its guarantees or the applicable indenture, except in accordance
with the terms of the applicable indenture; or
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modify any of the above provisions.
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We and
the trustee may, without the consent of any holders, modify or amend the terms of an indenture and the debt securities of any series
with respect to the following:
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to add to our covenants
for the benefit of holders of the debt securities of all or any series or to surrender any right or power conferred upon us;
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to evidence the
succession of another person to, and the assumption by the successor of our covenants, agreements and obligations under, such
indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets;”
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to add any additional
events of default for the benefit of holders of the debt securities of all or any series;
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to add guarantees
or guarantors in respect of debt securities, and to evidence the release and discharge of any guarantor from its obligations under
its guarantee of debt securities and its obligations under the applicable indenture in accordance with the terms of such indenture;
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to secure the debt
securities pursuant to the covenants of such indenture or to provide that any of the obligations under the debt securities or
such indenture shall be guaranteed and the terms and conditions for the release or substitution of the security or guarantee;
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to add or appoint
a successor or separate trustee or other agent;
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to provide for the
issuance of additional debt securities of any series;
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to establish the
form or terms of debt securities of any series as permitted by such indenture;
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to comply with the
rules of any applicable securities depository;
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to supplement any
of the provisions of such indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge
of any series of debt securities, provided that any such action will not adversely affect the interests of the holders of debt
securities of that series or any other series of debt securities issued under such indenture in any material respect;
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to provide for uncertificated
debt securities in addition to or in place of certificated debt securities;
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to add to, change
or eliminate any of the provisions of such indenture in respect of one or more series of debt securities; provided that any such
addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the modification
or execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder
of any such debt security with respect to such provision or (b) shall become effective only when there is no debt security described
in clause (1) outstanding;
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to conform the text
of such indenture and the debt securities of such series to this “Description of the Debt Securities” or the comparable
provisions in the applicable prospectus supplement to the extent this “Description of the Debt Securities” or such
comparable provision in such applicable prospectus supplement was intended to be a verbatim recitation of a provision of such
indenture or debt securities of such series, which intent may be evidenced by an officer’s certificate to that effect;
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to eliminate any
conflict between the terms of such indenture and the debt securities issued thereunder and the Trust Indenture Act of 1939;
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to cure any ambiguity,
omission, defect or inconsistency; or
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to change any other
provision with respect to matters or questions arising under such indenture, which shall not be inconsistent with any provision
of such indenture; provided that the change does not adversely affect the interests of the holders of debt securities of any series
in any material respect.
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The holders
of at least a majority in aggregate principal amount of the outstanding debt securities of any series may, on behalf of the holders
of all debt securities of that series, waive compliance by us with certain restrictive provisions of the applicable indenture.
The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of a series may, on behalf
of the holders of all debt securities of that series, waive any past default and its consequences under the applicable indenture
with respect to the debt securities of that series, except a default (1) in the payment of principal or premium, if any, or interest
on debt securities of that series, held by a non-consenting holder, or (2) in respect of a covenant or provision of the applicable
indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. Upon any such
waiver, such default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every
purpose of the applicable indenture; however, no such waiver will extend to any subsequent or other default or event of default
or impair any rights consequent thereon.
Discharge, Defeasance and Covenant
Defeasance
Unless otherwise provided in the applicable
prospectus supplement, upon our direction, the applicable indenture shall cease to be of further effect with respect to any series
of debt securities issued under the applicable indenture specified by us, subject to the survival of specified provisions of the
applicable indenture (including the obligation, if applicable, to exchange or convert debt securities of that series into other
securities or property in accordance with their terms) when:
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either:
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(A) all outstanding debt securities of that series and, in the case of bearer securities, all related coupons, have been delivered
to the trustee for cancellation, subject to exceptions, or;
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(B) all debt securities of that series and, if applicable, any related coupons have become due and payable or will become due
and payable at their stated maturity within one year or are to be called for redemption within one year and we have deposited with
the trustee, in trust, funds in U.S. dollars or in the foreign currency in which the debt securities of that series are payable
in an amount sufficient without reinvestment to pay the entire indebtedness on the debt securities of that series in respect of
principal, premium, if any, and interest, if any, to the date of such deposit, if the debt securities of that series have become
due and payable, or to the maturity or redemption date of the debt securities of that series, as the case may be;
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we have paid all other sums payable under the applicable indenture with respect to the debt securities of that series; and
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the trustee has received an officer’s certificate and an opinion of counsel called for by the applicable indenture.
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At such time as we shall have satisfied
the conditions set forth in the immediately preceding paragraph with respect to any series of guaranteed debt securities, each
guarantor of the debt securities of that series shall (except as provided in the next succeeding sentence and subject to other
limited exceptions) be automatically and unconditionally released and discharged from all of its obligations under its guarantee
of the debt securities of that series and all of its other obligations under the applicable indenture in respect of the debt securities
of that series, without any action by us, any guarantor or the trustee and without the consent of the holders of any debt securities.
We may discharge certain obligations to
holders of the debt securities of a series that have not already been delivered to the trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing
with the trustee, in trust, funds in U.S. dollars, U.S. Treasury securities with a maturity of one year or less or in a money market
fund that invests solely in short-term U.S. Treasury securities in an amount sufficient without reinvestment to pay the entire
indebtedness including the principal and premium, if any, and interest to the date of such deposit (if the debt securities have
become due and payable) or to the maturity thereof or the redemption date of the debt securities of that series, as the case may
be.
The indentures provide that we may elect
either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except for,
among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys
for payment in trust) (“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive
covenants under such indentures, and any omission to comply with such obligations will not constitute a default or an event of
default with respect to the debt securities of a series and clauses (4) and (8) under “—Events of Default” will
no longer be applied (“covenant defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be
conditioned upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or
U.S. government obligations, or both, applicable to the debt securities of that series which through the scheduled payment of principal
and interest in accordance with their terms will provide money in an amount sufficient without reinvestment to pay the principal
or premium, if any, and interest on the debt securities on the scheduled due dates therefor.
If we effect covenant defeasance with respect
to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the
trustee will be sufficient without reinvestment to pay amounts due on the debt securities of that series at the time of the stated
maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting
from an event of default. However, we would remain liable to make payment of such amounts due at the time of acceleration.
We will be required to deliver to the trustee
an opinion of counsel that the conditions precedent to such defeasance have been satisfied and that the deposit and related defeasance
will not cause the holders of the debt securities of that series to recognize income, gain or loss for U.S. federal income tax
purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service
or a change in law to that effect.
We may exercise our legal defeasance option
notwithstanding our prior exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided in the applicable
prospectus supplement, the debt securities will trade in the same-day funds settlement system of DTC until maturity or until we
issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities
to settle in immediately available funds. We can give no assurance as to the effect, if any, of settlement in immediately available
funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global
Securities
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will be issued in the form of one or more global debt securities, in
definitive, fully registered form without interest coupons, each of which we refer to as a “global security.” Each
such global security will be deposited with The Bank of New York Mellon as custodian for DTC and registered in the name of a nominee
of DTC for the accounts of participants in DTC.
Investors may hold their interests in a
global security directly through DTC if they are DTC participants, or indirectly through organizations that are DTC participants.
Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will
not be entitled to receive their debt securities in fully registered certificated form.
All interests in global debt securities
deposited with, or on behalf of, DTC will be subject to the operations and procedures of DTC. Additional or differing terms of
the depository arrangements may be described in the applicable prospectus supplement.
DTC has advised us as follows: DTC is a
limited-purpose trust company organized under 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 pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (“participants”) and to
facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates.
DTC’s participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC’s book-entry system is also available to others such as both U.S. and non-U.S.
securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship
with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon the issuance of each global security,
DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial
interests represented by the global security to the accounts of participants. Ownership of beneficial interests in each global
security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests
in each global security will be shown on, and the transfer of those ownership interests will be effected only through, records
maintained by DTC (with respect to participants’ interests) and such participants (with respect to the owners of beneficial
interests in the global security other than participants).
So long as DTC or its nominee is the registered
holder and owner of a global security, DTC or such nominee, as the case may be, will be considered the sole legal owner of the
debt security represented by the global security for all purposes under the applicable indenture, the debt securities and applicable
law. Except as set forth below, owners of beneficial interests in a global security will not be entitled to receive certificated
debt securities and will not be considered to be the owners or holders of any debt securities represented by the global security.
We understand that under existing industry practice, in the event an owner of a beneficial interest in a global security desires
to take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to
take such action, and that participants would authorize beneficial owners owning through such participants to take such action
or would otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a
global security will be able to transfer such interest except in accordance with DTC’s applicable procedures, in addition
to those provided for under such indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others,
the ability of a person having a beneficial interest in a global security to pledge that interest to persons that do not participate
in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate
representing that interest.
All payments on the debt securities represented
by a global security registered in the name of and held by DTC or its nominee will be made to DTC or its nominee, as the case may
be, as the registered owner and holder of the global security.
We expect that DTC or its nominee, upon
receipt of any payment of principal, premium, if any, or interest in respect of a global security, will credit participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global
security as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests
in the global security held through such participants will be governed by standing instructions and customary practices as is now
the case with securities held for accounts for customers registered in the names of nominees for such customers. These payments,
however, will be the responsibility of such participants and indirect participants, and neither we, the trustee nor any paying
agent will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial
ownership interests in any global security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between DTC and its participants or the relationship between such
participants and the owners of beneficial interests in the global security.
Unless and until it is exchanged in whole
or in part for certificated debt securities, each global security may not be transferred except as a whole by DTC to a nominee
of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action
permitted to be taken by a holder of debt securities only at the direction of one or more participants to whose account the DTC
interests in a global security are credited and only in respect of such portion of the aggregate principal amount of the debt securities
as to which such participant or participants has or have given such direction. However, if there is an event of default under the
debt securities, DTC may exchange each global security for certificated debt securities, which it will distribute to its participants
upon request.
Although we expect that DTC will agree to
the foregoing procedures in order to facilitate transfers of interests in each global security among participants of DTC, DTC is
under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither
we, the underwriters nor the trustee will have any responsibility for the performance or nonperformance by DTC or its participants
or indirect participants of their respective obligations under the rules and procedures governing their operations.
The indentures provide that the global securities
will be exchanged for debt securities in certificated form of like tenor and of an equal principal amount, in authorized denominations
in the following limited circumstances:
|
|
(1)
|
DTC notifies us that it is unwilling or unable to continue as depository or if DTC ceases to be eligible under the applicable
indenture and we do not appoint a successor depository within 90 days;
|
|
|
(2)
|
we determine that the debt securities will no longer be represented by global securities and execute and deliver to the trustee
an order to such effect; or
|
|
|
(3)
|
an event of default with respect to the debt securities will have occurred and be continuing and a request has been made for
such exchange.
|
These certificated debt securities will
be registered in such name or names as DTC will instruct the trustee. It is expected that such instructions may be based upon directions
received by DTC from participants with respect to ownership of beneficial interests in global securities.
The information in this section of this
prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but
we do not take responsibility for this information.
Euroclear and Clearstream
If the depositary for a global security
is DTC, you may hold interests in the global security through Clearstream Banking, société anonyme, which we refer
to as “Clearstream,” or Euroclear Bank SA/ NV, as operator of the Euroclear System, which we refer to as “Euroclear,”
in each case, as a participant in DTC. Euroclear and Clearstream will hold interests, in each case, on behalf of their participants
through customers’ securities accounts in the names of Euroclear and Clearstream on the books of their respective depositaries,
which in turn will hold such interests in customers’ securities in the depositaries’ names on DTC’s books.
Payments, deliveries, transfers, exchanges,
notices and other matters relating to the debt securities made through Euroclear or Clearstream must comply with the rules and
procedures of those systems. Those systems could change their rules and procedures at any time. We have no control over those systems
or their participants, and we take no responsibility for their activities. Transactions between participants in Euroclear or Clearstream,
on one hand, and other participants in DTC, on the other hand, would also be subject to DTC’s rules and procedures.
Investors 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 debt securities through these systems and wish on a particular day, to transfer
their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, may find
that the transaction will not be effected until the next business day in Luxembourg or Brussels, as applicable. Thus, investors
who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition, investors
who hold their interests through both DTC and Euroclear or Clearstream may need to make special arrangements to finance any purchase
or sales of their interests between the U.S. and European clearing systems, and those transactions may settle later than transactions
within one clearing system.
Governing Law
The indentures and the debt securities will
be governed by, and construed in accordance with, the laws of the State of New York. The Company consents to the non-exclusive
jurisdiction of the federal and state courts located in the City of New York, Borough of Manhattan.
Regarding the Trustee
The Bank of New York Mellon is the trustee
under each of the indentures.
The Trust Indenture Act of 1939 limits the
rights of a trustee, if the trustee becomes a creditor of us to obtain payment of claims or to realize on property received by
it in respect of those claims, as security or otherwise. Any trustee is permitted to engage in other transactions with us and our
subsidiaries from time to time. However, if a trustee acquires any conflicting interest (as defined in each indenture) it must
eliminate the conflict upon the occurrence of an event of default under the applicable indenture or resign as trustee.
SELLING SECURITY HOLDERS
We may register any of the securities covered
by this prospectus for re-offers and re-sales by any selling security holders to be named in a prospectus supplement. We may register
these securities to permit selling security holders to resell their securities when and if they deem appropriate. A selling security
holder may resell, transfer or otherwise dispose of all, a portion or none of such security holder’s securities at any time
and from time to time. Selling security holders may also sell, transfer or otherwise dispose of some or all of their securities
in transactions exempt from the registration requirements of the Securities Act. We do not know when or in what amount the selling
security holders may offer those securities for sale under this prospectus and any applicable accompanying prospectus supplement.
We may pay all expenses incurred with respect to the registration of any such securities owned by the selling security holders,
other than underwriting fees, discounts or commissions which will be borne by the selling security holder. Information about selling
security holders, including their identities and the security to be registered on their behalf, will be set forth in a prospectus
supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that are incorporated by reference
into this prospectus. The selling security holders may include certain of our affiliates.
PLAN OF DISTRIBUTION
We and/or the selling security holders,
if applicable, may sell the Class A Shares, preference shares and the debt securities from time to time in one or more transactions
in any of the following ways:
·
to or through underwriting syndicates represented by managing underwriters;
·
through one or more underwriters without a syndicate for them to offer and sell to the public;
·
through dealers or agents;
·
to one or more investors directly and in privately negotiated sales or in competitively bid transactions;
·
on the NASDAQ, in the over the counter market or on any other securities exchange on which our shares are listed or traded;
·
in a block trade in which a broker dealer will attempt to sell the offered shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
·
through collared hedging transactions, whether through an options exchange or otherwise;
·
through purchases by a broker dealer as principal and release by the broker dealer for its account pursuant to this prospectus;
and
·
through any other method permitted by applicable law.
Underwriters
If underwriters are used in the sale, we
will execute an underwriting agreement with those underwriters relating to the securities that we will offer. Unless otherwise
set forth in the prospectus supplement, the obligations of the underwriters to purchase these securities will be subject to conditions.
The underwriters will be obligated to purchase all of these securities if any are purchased.
The securities subject to the underwriting
agreement will be acquired by the underwriters for their own account and may be resold by them from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of
sale. Underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and
may also receive commissions from the purchasers of these securities for whom they may act as agent. Underwriters may sell these
securities to or through dealers. These dealers may receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as agent. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
We also may sell the securities in connection
with a remarketing upon their purchase, in connection with a redemption or repayment, by a remarketing firm acting as principal
for its own account or as our agent. Remarketing firms may be deemed to be underwriters in connection with the securities that
they remarket.
We may authorize underwriters to solicit
offers by institutions to purchase the securities subject to the underwriting agreement from us, at the public offering price stated
in the prospectus supplement under delayed delivery contracts providing for payment and delivery on a specified date in the future.
If we sell securities under these delayed delivery contracts, the prospectus supplement will state that as well as the conditions
to which these delayed delivery contracts will be subject and the commissions payable for that solicitation.
The Class A Shares covered by this prospectus
may also be sold from time to time by our selling stockholders. The selling stockholders and their successors, including their
transferees, may sell their shares of Class A Shares directly to purchasers or through underwriters, broker-dealers or agents,
who may receive compensation in the form of discounts, concessions, or commissions from the selling stockholders or the purchasers
of the securities. In the case of sales by selling stockholders, we will not receive any of the proceeds from the sale by them
of the securities. Unless otherwise described in an applicable prospectus supplement, the description herein of sales by us regarding
underwriters, dealers and agents will apply similarly to sales by selling stockholders through underwriters, dealers and agents.
We will name the underwriters, dealers or agents acting for the selling stockholders in a prospectus supplement and provide the
principal terms of the agreement between the selling stockholders and the underwriters, dealers or agents. In offering the securities
covered by this prospectus, the selling stockholders and any underwriters, broker-dealers or agents that participate in the sale
of those securities may be deemed “underwriters” within the meaning of Section 2(a)(11) of the Securities Act.
Agents
We may also sell any of the securities through
agents designated by us from time to time. We will name any agent involved in the offer or sale of these securities and will list
commissions payable by us to these agents in the prospectus supplement. These agents will be acting on a best efforts basis to
solicit purchases for the period of its appointment, unless we state otherwise in the prospectus supplement.
Direct Sales
We may sell any of the securities directly
to purchasers. In this case, we will not engage underwriters or agents in the offer and sale of these securities.
Indemnification
We may indemnify underwriters, dealers or
agents who participate in the distribution of securities against certain liabilities, including liabilities under the Securities
Act and agree to contribute to payments which these underwriters, dealers or agents may be required to make.
No Assurance of Liquidity
The securities offered hereby may be a new
issue of securities with no established trading market. Any underwriters that purchase securities from us may make a market in
these securities. The underwriters will not be obligated, however, to make a market and may discontinue market-making at any time
without notice to holders of the securities. We cannot assure you that there will be liquidity in the trading market for any securities
of any series.
LEGAL MATERS
The validity of each of the securities offered
by this prospectus will be passed upon for us by Simpson Thacher & Bartlett LLP, New York, New York, as to matters of United
States federal and New York law, and by Stikeman Elliott LLP, Toronto, Canada, as to matters of Canadian law.
EXPERTS
The consolidated financial statements and
financial statement schedules of MDC as of December 31, 2013 and 2012 and for each of the three years ended December 31, 2013 and
management’s assessment of the effectiveness of MDC’s internal control over financial reporting as of December 31,
2013 are incorporated by reference in this prospectus and the registration statement have been so incorporated in reliance on the
reports of BDO USA, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority
of said firm as experts in auditing and accounting.
ENFORCEABILITY OF CIVIL LIABILITIES
We are organized under the laws of Canada.
Certain of our directors and officers, and those of some of our subsidiaries, are non-residents of the United States and our assets
and the assets of certain of our directors and officers are located outside the United States. As a result, it may not be possible
for you to effect service of process within the United States upon us, and our directors and officers or to enforce against us
or them judgments obtained in U.S. courts predicated upon civil liability provisions of the federal securities laws of the United
States.
WE HAVE BEEN ADVISED BY STIKEMAN ELLIOTT
LLP, OUR CANADIAN COUNSEL, THAT THERE IS DOUBT AS TO THE ENFORCEABILITY, IN ORIGINAL ACTIONS IN CANADIAN COURTS, OF LIABILITIES
BASED UPON UNITED STATES FEDERAL SECURITIES LAWS AND, DEPENDING ON THE CIRCUMSTANCES, AS TO THE ENFORCEABILITY IN CANADIAN COURTS
OF JUDGMENTS OF UNITED STATES COURTS OBTAINED IN ACTIONS BASED UPON THE CIVIL LIABILITY PROVISIONS OF THE UNITED STATES FEDERAL
SECURITIES LAWS OR OTHER LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR THE EQUIVALENT LAWS OF OTHER JURISDICTIONS. THEREFORE,
IT MAY NOT BE POSSIBLE TO ENFORCE THOSE ACTIONS AGAINST US, OUR DIRECTORS AND OFFICERS NAMED IN THIS PROSPECTUS.
ENFORCEABILITY OF JUDGMENTS
Since a significant amount of the assets
of the Company are outside the United States, any judgment obtained in the United States against the Company may not be collectible
within United States.
We have been further informed by our Canadian
counsel that the laws of the Province of Ontario and the federal laws of Canada applicable therein permit an action to be brought
in a court of competent jurisdiction in the Province of Ontario (a “Canadian Court”) on any final, conclusive and enforceable
judgment
in personam
of any federal or state court located in the State of New York (“New York Court”) that
is subsisting, has not been satisfied and that is not impeachable as void or voidable under the internal laws of the State of New
York for a sum certain in respect of the enforcement of the securities if (i) the New York Court rendering such judgment had jurisdiction
over the judgment debtor, as recognized by a Canadian Court (and submission by the Company to the non-exclusive jurisdiction of
the New York Court will be sufficient for such purpose), (ii) the applicable party was duly served with the process of the New
York Court or appeared to such process, (iii) such judgment was not obtained by fraud or in a manner contrary to natural justice
or in contravention of the fundamental principles of procedure and the decision and the enforcement thereof would not be inconsistent
with public policy, as such term is understood under the laws of the Province of Ontario, (iv) such judgment is not contrary to
any order made by the Attorney General of Canada under the
Foreign Extraterritorial Measures Act
(Canada) or by the competition
tribunal under the
Competition Act
(Canada), (v) the enforcement of such judgment would not be contrary to any order made
under the
United Nations Act
(Canada) or
Special Economic Measures Act
(Canada) by the Governor in council, (vi)
the enforcement of such judgment would not be contrary to the laws of general application limiting the enforcement of creditors’
rights and does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriatory penal or public laws,
(vii) the action to enforce such judgment is commenced within the applicable limitation period, (viii) there is not a subsisting
judgment in any jurisdiction relating to the same cause of action which meets the necessary conditions for recognition under the
laws of the Province of Ontario, (ix) no new admissible evidence is discovered and presented before the Canadian Court reaches
its judgment and (x) interest payable on any of the securities is not characterized by a Canadian Court as interest payable at
a criminal rate within the meaning of Section 347 of the
Criminal Code
(Canada).
In addition, under the
Currency Act
(Canada), a Canadian Court may only render judgment for a sum of money in Canadian currency, and in enforcing a foreign judgment
for a sum of money in a foreign currency, a Canadian Court will render its decisions in the Canadian currency equivalent of such
foreign currency.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
.
The following table reflects an itemization
of all fees and expenses, other than underwriting discounts and commissions, incurred or expected to be incurred by the Company,
in connection with the issuance and distribution of the securities being registered hereby. All amounts listed below, other than
the Securities and Exchange Commission registration fee, are estimates and remain subject to future contingencies.
|
Securities and Exchange Commission registration fee
|
|
$
|
(1
|
)
|
|
FINRA filing fees
|
|
|
(2
|
)
|
|
Legal fees and expenses
|
|
|
(2
|
)
|
|
Accounting fees and expenses
|
|
|
(2
|
)
|
|
Trustees’ fees and expenses
|
|
|
(2
|
)
|
|
Printing and engraving fees and expenses
|
|
|
(2
|
)
|
|
Blue Sky fees and expenses
|
|
|
(2
|
)
|
|
Transfer Agent and Registrar fees and expenses
|
|
|
(2
|
)
|
|
Miscellaneous expenses
|
|
|
(2
|
)
|
|
Total
|
|
$
|
(2
|
)
|
|
|
(1)
|
Pursuant to Rules 456(b) and 457(r) of the Securities Act, the Company elects to defer payment of all of the registration fees.
|
|
|
(2)
|
The amount of these fees and expenses are calculated based on the amount of securities offered and the number of offerings
and, accordingly, are not presently known and cannot be estimated at this time. The foregoing sets forth the general categories
of expenses (other than underwriting discounts and commissions) that the Company anticipates it will incur in connection with the
offering of securities under this prospectus. An estimate of the aggregate amount of these expenses in connection with the issuance
and distribution of the securities being offered will be reflected in the applicable prospectus supplement.
|
Item 15.
Indemnification of Directors and Officers
.
The CBCA provides generally that a corporation
may indemnify a director or officer of the corporation (or former director or officer of the corporation, or another individual
who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of
another entity) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by the director or officer in respect of any civil, criminal, administrative, investigative or other proceeding to which
he or she is made a party by reason of being a director or officer, where the director or officer acted honestly and in good faith
with a view to the best interests of the corporation and, in the case of a criminal or administrative action or proceeding enforced
by a monetary penalty, the director or officer had reasonable grounds for believing that his or her conduct was lawful. Where such
an officer or director was not judged by the court or other competent authority to have committed any fault or omitted to do anything
he or she ought to have done, such officer or director is entitled to indemnification from the corporation for such costs, charges
and expenses which were reasonably incurred by the officer or director in connection with the defense of any civil, criminal, investigative
or other proceeding to which he or she was subject by reason of being a director or officer.
Our Bylaws provide that, except as otherwise
provided for in the CBCA, no director or officer shall be liable for the acts, receipts, neglects or defaults of any other director,
officer, employee, or agent, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening
to the Company through the insufficiency or deficiency of title to any property acquired for or on behalf of the Company, or for
the insufficiency or deficiency of any security in or upon which any of the moneys of or belonging to the Company shall be invested,
or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person, firm or corporation with whom
or which any of the moneys, securities or effects of the Company shall be lodged or deposited, or for any loss, conversion, misapplication
or misappropriation of or any damage resulting from any dealings with any moneys, securities or other assets belonging to the Company,
or for any other loss, damage or misfortune whatsoever which shall happen in the execution of the duties of his or her respective
office or trust or in relation thereto, unless the same happen by or through his or her failure to exercise the powers and to discharge
the duties of his or her office honestly and in good faith with a view to the best interests of the Company and in connection therewith
to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The directors
for the time being of the Company shall not be under any duty or responsibility in respect of any contract, act or transaction
whether or not made, done or entered into in the name or on behalf of the Company, except such as shall have been submitted to
and authorized or approved by the board of directors. If any director or officer of the Company shall be employed by or shall perform
services for the Company otherwise than as a director or officer or shall be a member of a firm or a stockholder, director or officer
of a company which is employed by or performs services for the Company, the fact of his or her being a director or officer of the
Company shall not disentitle such director or officer or such firm or company, as the case may be, from receiving proper remuneration
for such services.
In addition, under the Company’s Bylaws,
subject to Section 124 of the CBCA, every director and officer of the Company and his or her heirs, executors, administrators and
other legal personal representatives shall from time be indemnified and saved harmless by the Company from and against, (a) any
liability and all costs, charges and expenses that he or she sustains or incurs in respect of any action, suit or proceeding that
is proposed or commenced against him or her for or in respect of anything done or permitted by him or her in respect of the execution
of the duties of his or her office; and (b) all other costs, charges and expenses that he or she sustains or incurs in respect
of the affairs of the Company. The Company shall also indemnify any such person in other circumstances as the CBCA permits or requires.
Item 16.
Exhibits.
(a)
Exhibits
|
|
1.1**
|
Form of Underwriting Agreement (Class A Shares).
|
|
|
1.2**
|
Form of Underwriting Agreement (Preference Shares).
|
|
|
1.3**
|
Form of Underwriting Agreement (Debt).
|
|
|
4.1
|
Articles of Amalgamation, dated January 1, 2004 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q
filed on May 10, 2004).
|
|
|
4.1.1
|
Articles of Continuance, dated June 28, 2004 (incorporated by reference to Exhibit 3.3 to the Company’s Form 10-Q filed
on August 4, 2004).
|
|
|
4.1.2
|
Articles of Amalgamation, dated July 1, 2010 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q filed
on July 30, 2010).
|
|
|
4.1.3
|
Articles of Amalgamation, dated May 1, 2011 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q filed
on May 2, 2011).
|
|
|
4.1.4
|
Articles of Amalgamation, dated January 1, 2013 (incorporated by reference to Exhibit 3.1.4 to the Company’s Form 10-K filed on March 10, 2014).
|
|
|
4.1.5
|
Articles of Amalgamation, dated April 1, 2013 (incorporated by reference to Exhibit 3.1.5 to the Company’s Form 10-K filed on March 10, 2014)
.
|
|
|
4.1.6
|
Articles of Amalgamation, dated July 1, 2013 (incorporated by reference to Exhibit 3.1.6 to the Company’s Form 10-K filed on March 10, 2014)
.
|
|
|
4.2
|
General By-law No. 1, as amended on April 29, 2005 (incorporated by reference to Exhibit 3.2 to the Company’s Form 10-K
filed on March 16, 2007).
|
|
|
4.3
|
Indenture, dated as of March 20, 2013, by and between the Company, the Note Guarantors, and The Bank of New York Mellon,
as trustee (incorporated by reference to Exhibit 4.1
to the Company’s Form 8-K filed on March 20, 2013).
|
|
|
4.3.1
|
6.75% Senior Note due 2020 (incorporated by reference to Exhibit 4.2 to the Company’s Form 8-K filed on
March 20, 2013).
|
|
|
4.3.2
|
First Supplemental Indenture, dated as of
June 21, 2013, to the Indenture, dated as of March 20, 2013, among the Company, the Note Guarantors and The Bank of New York
Mellon, as trustee (incorporated by reference to Exhibit 4.1.2 to the Company’s Form 10-K filed on March 10,
2014).
|
|
|
4.3.3
|
Second Supplemental Indenture, dated as of November 6, 2013, to the Indenture, dated as of March 20, 2013, among the Company, the Note Guarantors and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1.3 to the Company’s Form 10-K filed on March 10, 2014).
|
|
|
4.3.4
|
Third Supplemental Indenture, dated as of November 15, 2013, to the Indenture, dated as of March 20, 2013, among the Company,
the Note Guarantors and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1 to the Company’s
Form 8-K filed on November 15, 2013).
|
|
|
4.4*
|
Specimen of stock certificate representing the Company’s Class A Subordinate Voting Shares, no par value.
|
|
|
4.5**
|
Form of Certificate of Designations for Preference Shares.
|
|
|
4.6*
|
Form of Senior Indenture between the Company and The Bank of New York Mellon, as Trustee for the Senior Debt Securities.
|
|
|
4.7**
|
Form of Senior Debt Securities.
|
|
|
4.8*
|
Form of Subordinated Indenture between the Company and The Bank of New York Mellon, as Trustee for the Senior Subordinated
Debt Securities and the Subordinated Debt Securities.
|
|
|
4.9**
|
Form of Senior Subordinated Debt Securities.
|
|
|
4.10**
|
Form of Subordinated Debt Securities.
|
|
|
5.1*
|
Opinion of Simpson Thacher & Bartlett LLP.
|
|
|
5.2*
|
Opinion of Stikeman Elliott LLP.
|
|
|
12.1
|
Statement of computation in support of ratio of earnings to fixed charges (incorporated by reference to Exhibit 12 to the Company’s
Form 10-K filed on March 10, 2014).
|
|
|
23.1*
|
Consent of BDO USA, LLP, Independent Registered Public Accounting Firm.
|
|
|
23.2
|
Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1).
|
|
|
23.3
|
Consent of Stikeman Elliot LLP (included in Exhibit 5.2).
|
|
|
24.1
|
Powers of Attorney of certain officers and directors of the Company (included on the signature page hereof).
|
|
|
25.1*
|
Form T-1, Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, of The Bank of New York Mellon,
as Trustee under the Indenture for the Senior Debt Securities.
|
|
|
25.2*
|
Form T-1, Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, of The Bank of New York Mellon,
as Trustee under the Indenture for the Senior Subordinated Debt Securities and Subordinated Debt Securities.
|
* Filed herewith.
** To be filed by amendment or as an exhibit to a document to be incorporated by reference herein.
Item 17.
Undertakings
.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act 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 Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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 (1)(i), (1)(ii)
and (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 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), 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 a part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act to any purchaser:
(i) Each prospectus filed
by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section
10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the 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.
(7) Insofar as indemnification for liabilities
arising under the Securities Act 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized
in the City of New York, State of New York as of March 10, 2014.
|
|
MDC PARTNERS INC.
|
|
|
|
|
|
By:
|
/s/ Miles S. Nadal
|
|
|
|
Name: Miles S. Nadal
|
|
|
|
Title: Chairman, Chief Executive Officer and President
|
POWER OF ATTORNEY
Each person whose signature appears below
on this Registration Statement hereby constitutes and appoints David Doft and Mitchell Gendel with full power to act as his or
her true and lawful attorney-in-fact and agent, 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 (unless revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of attorney is attached, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to such attorney-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
such attorney-in-fact and agents, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney may be executed in
multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
|
Signature
|
Title
|
Date
|
|
|
|
|
|
/s/ Miles
S. Nadal
|
Chariman, Chief Executive Officer
|
March 10, 2014
|
|
Miles S. Nadal
|
and President (Principal Executive Officer)
|
|
|
|
|
|
|
/s/ David
Doft
|
Chief Financial Officer
|
March 10, 2014
|
|
David Doft
|
(Principal Financial Officer)
|
|
|
|
|
|
|
/s/ Michael
Sabatino
|
Senior Vice President and Chief Accounting
|
March 10, 2014
|
|
Michael Sabatino
|
Officer (Principal Accounting Officer)
|
|
|
|
|
|
|
/s/ Scott
Kauffman
|
Presiding Director
|
March 10, 2014
|
|
Scott Kauffman
|
|
|
|
|
|
|
|
/s/ Robert
Kamerschen
|
Director
|
March 10, 2014
|
|
Robert Kamerschen
|
|
|
|
|
|
|
|
/s/ Clare
Copeland
|
Director
|
March 10, 2014
|
|
Clare Copeland
|
|
|
|
|
|
|
|
/s/ Thomas
N. Davidson
|
Director
|
March 10, 2014
|
|
Thomas N. Davidson
|
|
|
|
|
|
|
|
/s/ Michael
J. Kirby
|
Director
|
March 10, 2014
|
|
Michael J. Kirby
|
|
|
|
|
|
|
|
/s/ Stephen
M. Pustil
|
Director, Vice Chairman
|
March 10, 2014
|
|
Stephen M. Pustil
|
|
|
|
/s/ Irwin
D. Simon
|
Director
|
March 10, 2014
|
|
Irwin D. Simon
|
|
|
EXHIBIT INDEX
|
Exhibit
No.
|
Description
of Exhibit
|
|
1.1**
|
Form of Underwriting Agreement (Class A Shares).
|
|
|
|
|
1.2**
|
Form of Underwriting Agreement (Preference Shares).
|
|
|
|
|
1.3**
|
Form of Underwriting Agreement (Debt).
|
|
|
|
|
4.1
|
Articles of Amalgamation, dated January 1, 2004 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q filed on May 10, 2004).
|
|
|
|
|
4.1.1
|
Articles of Continuance, dated June 28, 2004 (incorporated by reference to Exhibit 3.3 to the Company’s Form 10-Q filed on August 4, 2004).
|
|
|
|
|
4.1.2
|
Articles of Amalgamation, dated July 1, 2010 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q filed on July 30, 2010).
|
|
|
|
|
4.1.3
|
Articles of Amalgamation, dated May 1, 2011 (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-Q filed on May 2, 2011).
|
|
|
|
|
4.1.4
|
Articles of Amalgamation, dated January 1, 2013 (incorporated by reference to Exhibit 3.1.4 to the Company’s
Form 10-K filed on March 10, 2014).
|
|
|
|
|
4.1.5
|
Articles of Amalgamation, dated April 1, 2013 (incorporated by reference to Exhibit 3.1.5 to the Company’s
Form 10-K filed on March 10, 2014).
|
|
|
|
|
4.1.6
|
Articles of Amalgamation, dated July 1, 2013 (incorporated by reference to Exhibit 3.1.6 to the Company’s
Form 10-K filed on March 10, 2014).
|
|
|
|
|
4.2
|
General By-law No. 1, as amended on April 29, 2005 (incorporated by reference to Exhibit 3.2 to the Company’s Form 10-K filed on March 16, 2007).
|
|
|
|
|
4.3
|
Indenture, dated as of March 20, 2013, by and between the Company, the Note Guarantors, and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed on March 20, 2013).
|
|
|
|
|
4.3.1
|
6.75% Senior Note due 2020 (incorporated by
reference to Exhibit 4.2 to the Company’s Form 8-K filed on March 20, 2013).
|
|
|
|
|
4.3.2
|
First Supplemental Indenture, dated as of June 21, 2013, to the Indenture, dated as of March 20,
2013, among the Company, the Note Guarantors and The Bank of New York Mellon, as trustee (incorporated by reference to
Exhibit 4.1.2 to the Company’s Form 10-K filed on March 10, 2014).
|
|
|
|
|
4.3.3
|
Second Supplemental Indenture, dated as of November 6, 2013, to the Indenture, dated as of March 20, 2013,
among the Company, the Note Guarantors and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1.3
to the Company’s Form 10-K filed on March 10, 2014).
|
|
|
|
|
4.3.4
|
Third Supplemental Indenture, dated as of November 15, 2013, to the Indenture, dated as of March 20, 2013, among the Company, the Note Guarantors and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed on November 15, 2013).
|
|
|
|
|
4.4*
|
Specimen of stock certificate representing the Company’s Class A Subordinate Voting Shares, no par value.
|
|
|
|
|
4.5**
|
Form of Certificate of Designations for Preference Shares.
|
|
|
|
|
4.6*
|
Form of Senior Indenture between the Company and The Bank of New York Mellon,
as Trustee for the Senior Debt Securities.
|
|
|
|
|
4.7**
|
Form of Senior Debt Securities.
|
|
|
|
|
4.8*
|
Form of Subordinated Indenture between the Company and The Bank of New York Mellon, as Trustee for the Senior Subordinated Debt Securities and the Subordinated Debt Securities.
|
|
|
|
|
4.9**
|
Form of Senior Subordinated Debt Securities.
|
|
|
|
|
4.10**
|
Form of Subordinated Debt Securities.
|
|
|
|
|
5.1*
|
Opinion of Simpson Thacher & Bartlett LLP.
|
|
5.2*
|
Opinion of Stikeman Elliott LLP.
|
|
|
|
|
12.1
|
Statement of computation in support of ratio of earnings to fixed charges (incorporated by reference to Exhibit 12 to the Company’s Form 10-K filed on March 10, 2014).
|
|
|
|
|
23.1*
|
Consent of BDO USA, LLP, Independent Registered Public Accounting Firm.
|
|
|
|
|
23.2
|
Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1).
|
|
|
|
|
23.3
|
Consent of Stikeman Elliot LLP (included in Exhibit 5.2).
|
|
|
|
|
24.1
|
Powers of Attorney of certain officers and directors of the Company (included on the signature page hereof).
|
|
|
|
|
25.1*
|
Form T-1, Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, of The Bank of New York Mellon, as Trustee under the Indenture for the Senior Debt Securities.
|
|
|
|
|
25.2*
|
Form T-1, Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, of The Bank of New York Mellon, as Trustee under the Indenture for the Senior Subordinated Debt Securities and Subordinated Debt Securities.
|
|
|
**
|
To be filed by amendment or as an exhibit to a document to be incorporated by reference herein.
|
SENIOR INDENTURE
Dated as of ________
between
MDC
Partners inc.
,
as Issuer
and
The
Bank of New York Mellon,
as Trustee
CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939
|
Trust Indenture Act Section
|
Indenture Section
|
|
Section 310(a)(1)
|
Section 609
|
|
(a)(2)
|
Section 609
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(b)
|
Section 608, Section 610
|
|
Section 311(a)
|
Section 613
|
|
(b)
|
Section 613
|
|
Section 312(a)
|
Section 701, Section 702
|
|
(b)
|
Section 702
|
|
(c)
|
Section 702
|
|
Section 313(a)
|
Section 703
|
|
(b)
|
Section 703
|
|
(c)
|
Section 703
|
|
(d)
|
Section 703
|
|
Section 314(a)
|
Section 704
|
|
(a)(4)
|
Section 1004
|
|
(b)
|
Not Applicable
|
|
(c)(1)
|
Section 102
|
|
(c)(2)
|
Section 102
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
Not Applicable
|
|
(e)
|
Section 102
|
|
Section 315(a)
|
Section 601
|
|
(b)
|
Section 602
|
|
(c)
|
Section 601
|
|
(d)
|
Section 601
|
|
(e)
|
Section 513
|
|
Section 316(a)
|
Section 101
|
|
(a)(1)(A)
|
Section 502, Section 511
|
|
(a)(1)(B)
|
Section 512
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
Section 508
|
|
(c)
|
Section 104
|
|
Section 317(a)(1)
|
Section 504
|
|
(a)(2)
|
Section 504
|
|
(b)
|
Section 1003
|
|
Section 318(a)
|
Section 107
|
_______________
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of this Indenture.
TABLE OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
|
|
|
Section 101.
|
Definitions
|
1
|
|
Section 102.
|
Compliance Certificates and Opinions
|
8
|
|
Section 103.
|
Form of Documents Delivered to Trustee
|
9
|
|
Section 104.
|
Acts of Holders; Record Dates
|
9
|
|
Section 105.
|
Notices, Etc., to Trustee and Issuer or Guarantors
|
11
|
|
Section 106.
|
Notice to Holders; Waiver
|
12
|
|
Section 107.
|
Conflict with Trust Indenture Act
|
12
|
|
Section 108.
|
Effect of Headings and Table of Contents
|
13
|
|
Section 109.
|
Successors and Assigns
|
13
|
|
Section 110.
|
Separability Clause
|
13
|
|
Section 111.
|
Benefits of Indenture
|
13
|
|
Section 112.
|
Governing Law; Submission to Jurisdiction
|
13
|
|
Section 113.
|
Legal Holidays
|
14
|
|
Section 114.
|
No Recourse Against Others
|
14
|
|
Section 115.
|
WAIVER OF JURY TRIAL
|
14
|
|
Section 116.
|
Counterpart Originals
|
14
|
|
Section 117.
|
Facsimile and PDF Delivery of Signature Pages
|
15
|
|
Section 118.
|
U.S.A. PATRIOT Act
|
15
|
|
Section 119.
|
No Adverse Interpretation of Other Agreements
|
15
|
|
|
|
|
|
Article II SECURITY FORMS
|
15
|
|
|
|
|
Section 201.
|
Forms Generally
|
15
|
|
Section 202.
|
Form of Legend for Global Securities
|
16
|
|
Section 203.
|
Form of Trustee’s Certificate of Authentication
|
17
|
|
|
|
|
|
Article III THE SECURITIES
|
17
|
|
|
|
|
Section 301.
|
Amount Unlimited; Issuable in Series
|
17
|
|
Section 302.
|
Denominations
|
21
|
|
Section 303.
|
Execution, Authentication, Delivery and Dating
|
21
|
|
Section 304.
|
Temporary Securities
|
22
|
|
Section 305.
|
Registration, Registration of Transfer and Exchange
|
23
|
|
Section 306.
|
Mutilated, Destroyed, Lost and Stolen Securities
|
25
|
|
Section 307.
|
Payment of Interest; Interest Rights Preserved
|
25
|
|
Section 308.
|
Persons Deemed Owners
|
27
|
|
|
|
Page
|
|
|
|
|
|
Section 309.
|
Cancellation
|
28
|
|
Section 310.
|
Computation of Interest
|
28
|
|
Section 311.
|
CUSIP Numbers
|
28
|
|
Section 312.
|
Original Issue Discount
|
29
|
|
|
|
|
|
Article IV SATISFACTION AND DISCHARGE
|
29
|
|
|
|
|
Section 401.
|
Satisfaction and Discharge of Indenture
|
29
|
|
Section 402.
|
Application of Trust Money
|
30
|
|
|
|
|
|
Article V REMEDIES
|
31
|
|
|
|
|
Section 501.
|
Events of Default
|
31
|
|
Section 502.
|
Acceleration of Maturity; Rescission and Annulment.
|
33
|
|
Section 503.
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
34
|
|
Section 504.
|
Trustee May File Proofs of Claim
|
34
|
|
Section 505.
|
Trustee May Enforce Claims Without Possession of Securities
|
35
|
|
Section 506.
|
Application of Money Collected
|
35
|
|
Section 507.
|
Limitation on Suits
|
35
|
|
Section 508.
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities
|
36
|
|
Section 509.
|
Rights and Remedies Cumulative
|
36
|
|
Section 510.
|
Delay or Omission Not Waiver
|
37
|
|
Section 511.
|
Control by Holders
|
37
|
|
Section 512.
|
Waiver of Past Defaults
|
37
|
|
Section 513.
|
Undertaking for Costs
|
37
|
|
Section 514.
|
Waiver of Usury, Stay or Extension Laws
|
38
|
|
Section 515.
|
Restoration of Rights and Remedies
|
38
|
|
|
|
|
|
Article VI THE TRUSTEE
|
38
|
|
|
|
|
Section 601.
|
Certain Duties and Responsibilities of Trustee
|
38
|
|
Section 602.
|
Notice of Defaults
|
40
|
|
Section 603.
|
Certain Rights of Trustee
|
40
|
|
Section 604.
|
Not Responsible for Recitals or Issuance of Securities
|
42
|
|
Section 605.
|
May Hold Securities
|
43
|
|
Section 606.
|
Money Held in Trust
|
43
|
|
Section 607.
|
Compensation and Reimbursement
|
43
|
|
Section 608.
|
Conflicting Interests
|
44
|
|
Section 609.
|
Corporate Trustee Required; Eligibility
|
44
|
|
Section 610.
|
Resignation and Removal; Appointment of Successor
|
44
|
|
|
|
Page
|
|
|
|
|
|
Section 611.
|
Acceptance of Appointment by Successor
|
46
|
|
Section 612.
|
Merger, Conversion, Consolidation or Succession to Business
|
47
|
|
Section 613.
|
Preferential Collection of Claims Against Issuer
|
47
|
|
Section 614.
|
Appointment of Co-Trustees
|
47
|
|
|
|
|
|
Article VII HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE ISSUER AND THE GUARANTORS
|
49
|
|
|
|
|
Section 701.
|
Issuer to Furnish Trustee Names and Addresses of Holders
|
49
|
|
Section 702.
|
Preservation of Information; Communications to Holders
|
49
|
|
Section 703.
|
Reports by Trustee
|
50
|
|
Section 704.
|
Reports by the Issuer and the Guarantors
|
50
|
|
|
|
|
|
Article VIII CONSOLIDATION, MERGER AND SALE OF ASSETS
|
50
|
|
|
|
|
|
|
|
|
Section 801.
|
Issuer May Merge or Transfer Assets Only on Certain Terms
|
50
|
|
Section 802.
|
Successor Person Substituted
|
51
|
|
|
|
|
|
Article IX modifications and SUPPLEMENTAL INDENTURES
|
51
|
|
|
|
|
Section 901.
|
Modifications or Supplemental Indentures Without Consent of Holders
|
51
|
|
Section 902.
|
Modifications or Supplemental Indentures With Consent of Holders
|
53
|
|
Section 903.
|
Execution of Supplemental Indentures
|
54
|
|
Section 904.
|
Effect of Supplemental Indentures
|
55
|
|
Section 905.
|
Conformity with Trust Indenture Act
|
55
|
|
Section 906.
|
Reference in Securities to Supplemental Indentures
|
55
|
|
|
|
|
|
Article X COVENANTS
|
55
|
|
|
|
|
Section 1001.
|
Payment of Principal, Premium, if any, and Interest
|
55
|
|
Section 1002.
|
Maintenance of Office or Agency
|
56
|
|
Section 1003.
|
Money for Securities Payments to Be Held in Trust
|
56
|
|
Section 1004.
|
Statement by Officers as to Default
|
57
|
|
Section 1005.
|
Waiver of Certain Covenants
|
57
|
|
|
|
|
|
Article XI REDEMPTION OF SECURITIES
|
58
|
|
|
|
|
Section 1101.
|
Applicability of Article
|
58
|
|
Section 1102.
|
Election to Redeem; Notice to Trustee
|
58
|
|
Section 1103.
|
Selection by Trustee of Securities to Be Redeemed
|
58
|
|
Section 1104.
|
Notice of Redemption
|
59
|
|
Section 1105.
|
Deposit of Redemption Price
|
60
|
|
|
|
Page
|
|
|
|
|
|
Section 1106.
|
Securities Payable on Redemption Date
|
61
|
|
Section 1107.
|
Securities Redeemed in Part
|
61
|
|
|
|
|
|
Article XII SINKING FUNDS
|
61
|
|
|
|
|
Section 1201.
|
Applicability of Article
|
61
|
|
Section 1202.
|
Satisfaction of Sinking Fund Payments with Securities
|
62
|
|
Section 1203.
|
Redemption of Securities for Sinking Fund
|
62
|
|
|
|
|
|
Article XIII DEFEASANCE AND COVENANT DEFEASANCE
|
62
|
|
|
|
|
Section 1301.
|
Issuer’s or Guarantors’ Option to Effect Defeasance or Covenant Defeasance
|
62
|
|
Section 1302.
|
Defeasance and Discharge
|
63
|
|
Section 1303.
|
Covenant Defeasance
|
63
|
|
Section 1304.
|
Conditions to Defeasance or Covenant Defeasance
|
64
|
|
Section 1305.
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
65
|
|
Section 1306.
|
Reinstatement
|
66
|
|
|
|
|
|
Article XIV REPAYMENT AT THE OPTION OF HOLDERS
|
66
|
|
|
|
|
Section 1401.
|
Applicability of Article
|
66
|
|
Section 1402.
|
Repayment of Securities
|
66
|
|
Section 1403.
|
Exercise of Option
|
67
|
|
Section 1404.
|
When Securities Presented for Repayment Become Due and Payable
|
67
|
|
Section 1405.
|
Securities Repaid in Part
|
68
|
|
|
|
|
|
Article XV GuaranteeS
|
68
|
|
|
|
|
Section 1501.
|
Guarantees.
|
68
|
EXHIBIT A Form of Supplemental
Indenture to be Delivered by Guarantors
INDENTURE, dated as of ________, between
mdc partners inc.
, a corporation continued under the laws of Canada (the “
Issuer
”),
and The Bank of New York Mellon, a New York banking corporation (together with any successor appointed pursuant to the terms of
this Indenture, the “
Trustee
”).
RECITALS
The Issuer has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of its senior unsubordinated debt securities (herein
called the “
Securities
”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture
a valid agreement of the Issuer in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the premises
and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
Article
I
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 I have the meanings assigned to them in this Article I and include the plural as well as
the singular;
|
|
|
(2)
|
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
|
|
|
(3)
|
unless the context otherwise requires, any reference to an “Article,” a “Section,” a “Schedule”
or an “Exhibit” refers to an Article, a Section, a Schedule or an Exhibit, as the case may be, of or to this Indenture;
|
|
|
(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;
|
|
|
(5)
|
“including” means including without limitation;
|
|
|
(6)
|
when used with respect to any Security, the words “convert,” “converted” and “conversion”
are intended to refer to the right of the Holder, the Issuer or the Guarantors, as the case may be, to convert or exchange such
Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such
Security as contemplated by Section 301, and these words are not intended to refer to any right of the Holder, the Issuer or the
Guarantors, as the case may be, to exchange such Security for other Securities of the same series and like tenor pursuant to Section
304, Section 305, Section 306, Section 906 or Section 1107 or another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such
Security as contemplated in Section 301; and
|
|
|
(7)
|
unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other
modifications to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited
by the terms of this Indenture.
|
“
Act
,” when used with
respect to any Holder, has the meaning specified in Section 104.
“
Affiliate
” means, with
respect to any specified Person, 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.
“
Applicable Procedures
”
means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that
are applicable to such matter at such time.
“
Bankruptcy Law
” has
the meaning specified in Section 501.
“
Board of Directors
”
means the board of directors or managers, as applicable, of the Issuer or any of the Guarantors, as the case may be, or any duly
authorized committee of that Board of Directors or any director or directors and/or officer or officers to whom that Board of Directors
or committee shall have duly delegated its authority.
“
Board Resolution
” means
a copy of one or more resolutions certified by the Secretary or an Assistant Secretary, or persons serving similar functions, of
the Issuer or any of the Guarantors, as the case may be, 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.
“
Business Day
” means,
when used with respect to any Place of Payment, unless otherwise specified as contemplated by Section 301, any day, other than
a Saturday or Sunday, which is not a day on which banking institutions are authorized or obligated by law, regulation or executive
order to close in that Place of Payment.
“
Commission
” means the
U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“
Corporate Trust Office
”
means the principal office of the Trustee at which, at any particular time, its corporate trust business shall be conducted, which
office is located as of the date of this Indenture at 101 Barclay Street, 7W, New York, New York 10286, Attention: Corporate Trust
Division – Corporate Finance Unit, or at such other address as the Trustee may designate from time to time by notice to the
Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Issuer).
“
Covenant Defeasance
”
has the meaning specified in Section 1303.
“
Custodian
” has the meaning
specified in Section 501.
“
Default
” means any event
which is, or after notice or passage of time or both would be, an Event of Default.
“
Defaulted Interest
”
has the meaning specified in Section 307.
“
Defeasance
” has the
meaning specified in Section 1302.
“
Depositary
” means, with
respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“
DTC
” means The Depository
Trust Company, its nominees and their respective successors and assigns.
“
Event of Default
” has
the meaning specified in Section 501.
“
Exchange Act
” means
the U.S. Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“
Expiration Date
” has
the meaning specified in Section 104.
“
GAAP
” means generally
accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States,
which are in effect on the date of this Indenture.
“
Global Security
” means
a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 202 (or such legend
as may be specified as contemplated by Section 301 for such Securities).
“
Guarantee
” has the meaning
specified in Section 1501.
“
Guarantors
” means any
Person who shall have become a Guarantor under this Indenture pursuant to Section 301 or Section 901, in each case unless and until
a successor Person shall have been substituted for such Guarantor pursuant to the applicable provisions of this Indenture established
pursuant to Section 301 or Section 901, at which time references to such Guarantor shall mean such successor person,
provided
that the term “Guarantor,” when used, with respect to any Security or the Securities of any series, means the Persons
who shall from time to time be the guarantors of such Security or the Securities of such series, respectively, as contemplated
by Article XV.
“
Guarantor Request
” or
“
Guarantor Order
” means a written request or order signed in the name of a Guarantor by any Officer of any Guarantor
(or any Person designated in writing as authorized to execute and deliver Guarantor Requests and Guarantor Orders), and delivered
to the Trustee.
“
Holder
” means a Person
in whose name a Security is registered in the Security Register.
“
Indenture
” means this
Indenture as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established
as contemplated by Section 301.
“
interest
” means, when
used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable
after Maturity.
“
Interest Payment Date
”
means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“
Internal Revenue Code
”
means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“
Issuer
” means the Person
named as the “Issuer” in the first paragraph of this Indenture until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
“
Issuer Request
” or “
Issuer
Order
” means a written request or order signed in the name of the Issuer by an Officer of the Issuer (or any Person designated
in writing as authorized to execute and deliver Issuer Requests and Issuer Orders), and delivered to the Trustee.
“
Maturity
” means, when
used with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
“
Notice of Default
” means
a written notice of the kind specified in Section 501.
“
Officer
” means the Chairman
of the Board, any Vice Chairman, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer,
the Chief Financial Officer, the Chief Accounting Officer, the Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Issuer or any of the Guarantors, as the case may be.
“
Officer’s Certificate
”
means a certificate signed by an Officer of the Issuer or any of the Guarantors, as the case may be, and delivered to the Trustee.
An Officer’s Certificate of the Issuer may be combined with an Officer’s Certificate of any of the Guarantors if signed
by an Officer of the Issuer and such Guarantor.
“
Opinion of Counsel
”
means a written opinion of counsel (who may be counsel for the Issuer or for any of the Guarantors, or for both). The counsel may
be an employee of the Issuer or any of the Guarantors. Opinions of Counsel required to be delivered under this Indenture may have
qualifications customary for opinions of the type required and counsel delivering such Opinions of Counsel may rely as to factual
matters on certificates of the Issuer, any of the Guarantors or governmental or other officials customary for opinions of the type
required.
“
Original Issue Discount Security
”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
“
Outstanding
” means,
when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
|
|
(1)
|
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
|
|
|
(2)
|
Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as
its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
|
|
|
(3)
|
Securities as to which Defeasance has been effected pursuant to Section 1302;
|
|
|
(4)
|
Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide
purchaser in whose hands such Securities
are valid obligations of the Issuer; and
|
|
|
(5)
|
Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made
available), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities
as contemplated in Section 301;
|
provided
,
however
, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as
of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed
to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a
Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided
in such clause), and (D) Securities owned by the Issuer, any of the Guarantors or any other obligor upon the Securities or any
Affiliate of the Issuer, any of the Guarantors or such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible Officer actually knows to be so owned shall be so
disregarded. 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 Securities and that the pledgee is
not the Issuer, any of the Guarantors or any other obligor upon the Securities or any Affiliate of the Issuer, any of the Guarantors
or such other obligor.
“
Paying Agent
” means
any Person authorized by the Issuer to pay the principal of or premium, if any, or interest on any Securities on behalf of the
Issuer or any of the Guarantors.
“
Person
” means any individual,
corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof or any other entity.
“
Place of Payment
” means,
subject to Section 1002, when used with respect to the Securities of any series, the place or places where the principal of and
premium, if any, and interest on the Securities of such series are payable as specified as contemplated by Section 301.
“
Predecessor Security
”
means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
“
Redemption Date
” means,
when used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
“
Redemption Price
” means,
when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“
Regular Record Date
”
means, for the interest payable on any Interest Payment Date on the Securities of any series, the date specified for that purpose
as contemplated by Section 301.
“
Repayment Date
” means,
when used with respect to a Security to be repaid at the option of a Holder, the date fixed for such repayment by or pursuant to
this Indenture.
“
Responsible Officer
”
means, when used with respect to the Trustee, any officer assigned to the Corporate Trust Division - Corporate Finance Unit (or
any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility
for the administration of this Indenture, and for purposes of Section 601(3)(B) and the second sentence of Section 602 shall also
include any officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
“
Securities
” has the
meaning specified in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“
Securities Act
” means
the U.S. Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“
Security Register
” and
“
Security Registrar
” have the respective meanings specified in Section 305.
“
Special Record Date
”
means, for the payment of any Defaulted Interest, a date fixed by the Trustee pursuant to Section 307.
“
Stated Maturity
” means,
when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“
Subsidiary
” means with
respect to any Person, another Person consolidated as a subsidiary on the consolidated financial statements of such Person in accordance
with GAAP (it being understood that making a Person part of a discontinued operation does not cause it to cease to be consolidated
as a subsidiary for purposes of this definition).
“
Trust Indenture Act
”
means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed;
provided
,
however
,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“
Trustee
” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of such series.
“
U.S. Government Obligation
”
means (1) any security which is (a) a direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (b) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in either case (a) or (b), is not callable or redeemable
at the option of the issuer thereof, and (2) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (1) above and held
by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of
or interest on any U.S. Government Obligation which is so specified and held;
provided
that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
“
Vice President
” means,
when used with respect to the Issuer, any of the Guarantors or the Trustee, any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president.”
|
|
Section
|
102.
Compliance
Certificates and Opinions
.
|
Upon any application or request by the Issuer
or any of the Guarantors to the Trustee to take any action under any provision of this Indenture, the Issuer or the Guarantors,
or both, as the case may be, shall furnish to the Trustee, if requested by the Trustee, an Officer’s 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 (except for certificates provided for in Section 1004)
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 Issuer or any of the Guarantors, or both, as the case may be, 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 such Officer’s 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 Issuer or any of the Guarantors, or both,
as the case may be, stating that the information with respect to such factual matters is in the possession of the Issuer or any
of the Guarantors, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion 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.
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|
Section
|
104.
Acts of Holders;
Record Dates
.
|
Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Guarantors. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
”
of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and, subject to Section 601, conclusive in favor of the Trustee,
the Issuer, and the Guarantors, if made in the manner provided in this Section 104.
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 reasonably deems sufficient. Where such
execution is by a Person acting in a capacity other than such Person’s individual capacity, such certificate or affidavit
shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved
by the Security Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the Trustee, the Issuer or the Guarantors in reliance thereon, whether or not
notation of such action is made upon such Security.
Each of the Issuer and the Guarantors may
set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give,
make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series;
provided
that neither the Issuer nor the Guarantors
may set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuer or
the Guarantors from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Issuer or the Guarantors, as the case may be, at its own expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record
date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 511, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such
action is taken.
With respect to any record date set pursuant
to this Section 104, the party hereto which sets such record dates may designate any day as the “
Expiration Date
”
and from time to time may change the Expiration Date to any earlier or later day;
provided
that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder
entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part
of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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|
Section
|
105.
Notices, Etc.,
to Trustee and Issuer or Guarantors
.
|
Any request, demand,
authorization, direction, notice, consent, waiver or 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 Issuer or by the Guarantors shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing and delivered in person, by facsimile at (212) 815-5704, mailed by first-class postage prepaid, to
or with the Trustee at its Corporate Trust Office at the location specified in Section 101; or
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|
|
(2)
|
the Issuer or the Guarantors by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and delivered in person, by facsimile or mailed, first-class postage prepaid (or, in the
case of Securities held in book-entry form, by electronic transmission), to the Issuer or the Guarantors addressed to the attention
of the Secretary of the Issuer or any of the Guarantors at the address of the Issuer’s or any of the Guarantors’ principal
office specified in writing to the Trustee by the Issuer or any such Guarantor and, until further notice, at, 745 Fifth Avenue,
19
th
Floor, New York, NY 10151, facsimile number (212) 937-4365, Attention: General Counsel.
|
If a notice or communication is mailed or
delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it,
except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt by the
Trustee at its Corporate Trust Office.
The Trustee shall have the right, but shall
not be required, to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar unsecured
electronic methods by persons believed by the Trustee to be authorized to give instructions and directions on behalf of the Issuer.
The Trustee shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is,
in fact, a person authorized to give instructions or directions on behalf of the Issuer; and the Trustee shall have no liability
for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of such reliance upon or compliance
with such instructions or directions. The Issuer 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
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|
Section
|
106.
Notice to Holders;
Waiver
.
|
Where this Indenture provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the
Security Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. 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.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice
of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security
(or its designee), pursuant to the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier
than the earliest date, if any, prescribed for the giving of such notice.
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|
Section
|
107.
Conflict with
Trust Indenture Act
.
|
If any provision of this Indenture limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
|
|
Section
|
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 Issuer and the Guarantors shall bind their respective successors and assigns, whether so expressed or not. All agreements
of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
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|
Section
|
110.
Separability
Clause
.
|
In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
|
|
Section
|
111.
Benefits of
Indenture
.
|
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
|
|
Section
|
112.
Governing Law;
Submission to Jurisdiction
.
|
This Indenture, the Securities and the Guarantees,
if any, shall be governed by, and construed in accordance with, the law of the State of New York.
Each of the Issuer, the Guarantors and each
Holder by its acceptance of a Security hereby:
|
|
(1)
|
agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Guarantees)
or the Securities, as the case may be, may be instituted in any federal or state court sitting in Borough of Manhattan, New York
City,
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(2)
|
waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court has been brought
in an inconvenient forum,
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(3)
|
irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding,
|
|
|
(4)
|
agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may
be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and
|
|
|
(5)
|
agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process
on it in any such suit, action or proceeding.
|
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|
Section
|
113.
Legal Holidays
.
|
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert such Holder’s
Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this
Section 113)) payment of principal and premium, if any, or interest, or the Redemption Price or conversion of such Security, need
not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such
conversion date. In the case, however, of Securities of a series bearing interest at a floating rate based on the London interbank
offered rate (LIBOR), if any Interest Payment Date (other than the Redemption Date or Stated Maturity) would otherwise be a date
that is not a Business Day, then the Interest Payment Date shall be postponed to the following date which is a Business Day, unless
that Business Day falls in the next succeeding calendar month, in which case the Interest Payment Date will be the immediately
preceding Business Day. No interest shall accrue for the period from and after any such Interest Payment Date, Redemption Date,
Stated Maturity or conversion date, as the case may be, to the date of such payment.
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|
Section
|
114.
No Recourse
Against Others
.
|
A director, officer, employee or stockholder
as such of the Issuer or any of the Guarantors shall not have any liability for any obligations of the Issuer or any such Guarantor
under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. By accepting a Security, each Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Securities.
|
|
Section
|
115.
WAIVER OF JURY
TRIAL
.
|
EACH OF THE ISSUER, THE GUARANTORS AND THE
TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE ISSUER, THE GUARANTORS AND THE TRUSTEE
ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES OR THE SECURITIES.
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|
Section
|
116.
Counterpart
Originals
.
|
The parties hereto may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
|
|
Section
|
117.
Facsimile and
PDF Delivery of Signature Pages
.
|
The exchange of copies of this Indenture
and of signature pages by facsimile or portable document format (“
PDF
”) transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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|
Section
|
118.
U.S.A. PATRIOT
Act
.
|
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. PATRIOT Act.
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|
Section
|
119.
No Adverse
Interpretation of Other Agreements
.
|
This Indenture may not be used to interpret
another indenture or loan or debt agreement of the Issuer or any Subsidiary of the Issuer, and no such indenture or loan or debt
agreement may be used to interpret the Indenture.
Article
II
SECURITY FORMS
|
|
Section
|
201.
Forms Generally
.
|
The Securities of each series and the Guarantees
thereof contemplated in Article XV shall be in substantially such form or forms as shall be established by or pursuant to a Board
Resolution of the Issuer or any of the Guarantors, as the case may be, or, subject to Section 303, set forth in, or determined
in the manner provided in, an Officer’s Certificate pursuant to a Board Resolution of the Issuer or any of the Guarantors,
as the case may be, 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 applicable tax laws or
the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officer executing
such Securities or Guarantees thereof, as evidenced by their execution thereof. If the form of Securities of any series or Guarantees
thereof 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 Issuer or any of the Guarantors, as applicable, and delivered to the
Trustee at or prior to the delivery of the Issuer Order contemplated by Section 303 for the authentication and delivery of such
Securities. If all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued
at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Security of such series,
but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing
such Securities or Guarantees, as evidenced by their execution of such Securities.
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|
Section
|
202.
Form of Legend
for Global Securities
.
|
Unless otherwise specified as contemplated
by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“
DTC
”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.
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|
Section
|
203.
Form of Trustee’s
Certificate of Authentication
.
|
The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
Dated:
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The Bank of New York Mellon
, as Trustee
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|
|
|
|
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|
By:
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Authorized Signatory
|
Article
III
THE SECURITIES
|
|
Section
|
301.
Amount Unlimited;
Issuable in Series
.
|
The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to (a) a Board Resolution of the Issuer or pursuant to authority granted by a
Board Resolution of the Issuer and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s
Certificate of the Issuer, or (b) one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
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(1)
|
the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
|
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(2)
|
the price or prices at which debt securities of the series will be issued;
|
|
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(3)
|
the limit, if any, on the aggregate principal amount of the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304, Section 305, Section 306, Section 906 or Section 1107 and except
for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
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(4)
|
the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
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(5)
|
the date or dates on which the principal of any Securities of the series is payable or the method used to determine or extend
those dates;
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(6)
|
the rate or rates, which may be fixed or variable, at which any Securities of the series shall bear interest, if any, the date
or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable, the
method or methods used to determine any variable rates and the Regular Record Date for any such interest payable on any Interest
Payment Date;
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(7)
|
the basis used to calculate interest, if any, on the debt securities of the series if other than a 360-day year of twelve 30-day
months;
|
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(8)
|
the place or places where the principal of and premium, if any, and interest on any Securities of the series shall be payable
and the manner in which any payment may be made;
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(9)
|
the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of
the series may be redeemed, in whole or in part, at the option of the Issuer and, if other than by a Board Resolution, the manner
in which any election by the Issuer to redeem the Securities shall be evidenced;
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(10)
|
the obligation or the right, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking
fund or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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(11)
|
if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any
Securities of the series shall be issuable;
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(12)
|
if the amount of principal of or premium, if any, or interest on any Securities of the series may be determined with reference
to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts shall be determined;
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(13)
|
if other than the currency of the United States of America, the currency, currencies or currency units in which the principal
of or premium, if any, or interest on any Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding”
in Section 101;
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(14)
|
if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the
Issuer or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are
stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such
Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
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(15)
|
if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
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(16)
|
if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one
or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of
any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
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(17)
|
if other than by a Board Resolution, the manner in which any election by the Issuer or any of the Guarantors to defease any
Securities of the series pursuant to Section 1302 or Section 1303 shall be evidenced; whether any Securities of the series other
than Securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to Section 1302 or Section 1303;
or, in the case of Securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the Securities
of the series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or Section 1303 or both such Sections;
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(18)
|
if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or
in lieu of those set forth in clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions
governing exchanges or transfers of such Global Security;
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(19)
|
any addition to, deletion from or change in the Events of Default which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
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(20)
|
any addition to, deletion from or change in the covenants set forth in Article VIII and Article X which applies to Securities
of the series;
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(21)
|
if the Securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property
of any Person (including the Issuer or any of the Guarantors), the terms and conditions upon which such Securities will be so convertible
or exchangeable;
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(22)
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whether any debt securities of the series will be issued in temporary or permanent global form and, if so, the identity of
the depositary for the global debt securities if other than DTC;
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(23)
|
whether the Securities of the series will be guaranteed by any Person or Persons (including any Guarantors) and, if so, the
identity of such Person or Persons, the terms and conditions upon which such Securities shall be guaranteed and, if applicable,
the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
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(24)
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whether the Securities of the series or guarantees will be secured by any collateral and, if so, the terms and conditions upon
which such Securities or guarantees shall be secured and, if applicable, upon which such liens may be subordinated to other liens
securing other indebtedness of the Issuer or any guarantor;
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(25)
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents;
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(26)
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any listing of the Securities on any securities exchange; and
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(27)
|
any other terms of the Securities of such series and the Guarantees thereof (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901 and Section 902).
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There shall be established in or pursuant
to a Board Resolution of any of the Guarantors and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer’s Certificate of such Guarantor, or established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, the provisions of the Guarantees with respect to the Securities of such series, if such provisions
differ from those set forth in Section 1501.
All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution
of the Issuer referred to above or pursuant to authority granted by one or more Board Resolutions of the Issuer and, subject to
Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate of the Issuer referred to above
or in any such indenture supplemental hereto.
All Securities of any one series need not
be issued at one time and, unless otherwise provided in or pursuant to the Board Resolution of the Issuer referred to above and,
subject to Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate of the Issuer referred
to above or pursuant to authority granted by one or more Board Resolutions of the Issuer or in any such indenture supplemental
hereto with respect to a series of Securities, additional Securities of a series may be issued, at the option of the Issuer, without
the consent of any Holder, at any time and from time to time.
If any of the terms of the series 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 Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate
setting forth the terms of the series.
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Section
|
302.
Denominations
.
|
The Securities of each series shall be issuable
only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In
the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
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Section
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303.
Execution,
Authentication, Delivery and Dating
.
|
The Securities shall be executed on behalf
of the Issuer by an Officer of the Issuer. The signature on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after
the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee
for authentication, together with a Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have
been established by or pursuant to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions
as permitted by Section 201 and Section 301, in authenticating such Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and, subject to Section 601, shall be
fully protected in relying upon, at the option of the Issuer, either (i) an Opinion of Counsel or (ii) a letter from legal counsel
addressed to the Trustee permitting it to rely on an Opinion of Counsel,
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(1)
|
if the form of such Securities has been established by or pursuant to a Board Resolution or pursuant to authority granted by
one or more Board Resolutions as permitted by Section 201, that such form has been established in conformity with the provisions
of this Indenture;
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(2)
|
if the terms of such Securities have been established by or pursuant to a Board Resolution or pursuant to authority granted
by one or more Board Resolutions as permitted by Section 301, that such terms have been established in conformity with the provisions
of this Indenture; and
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(3)
|
that such Securities, when authenticated by the Trustee and issued and delivered by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer enforceable
in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. Such Opinion of Counsel may
also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent such counsel deems proper,
upon certificates of officers of the Issuer and its subsidiaries, as applicable, and certificates of public officials.
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If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will
materially adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section
301 and of the preceding paragraph of this Section 303, if all Securities of a series are not to be originally issued at one time,
including in the event that the aggregate principal amount of a series of Outstanding Securities is increased as contemplated by
Section 301, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or
the Issuer Order and Opinion of Counsel otherwise required pursuant to this Section 303 at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of
its authentication.
No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and
the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits
of this Indenture.
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Section
|
304.
Temporary Securities
.
|
Pending the preparation of definitive Securities
of any series, the Issuer may execute, and, upon Issuer Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the Officer or Officers executing such Securities may determine, as evidenced
by their execution thereof.
If temporary Securities of any series are
issued, the Issuer will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment
for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series,
the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
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Section
|
305.
Registration,
Registration of Transfer and Exchange
.
|
The Issuer shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the
Issuer in a Place of Payment being herein sometimes collectively referred to as the “
Security Register
”) in
which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed “
Security Registrar
” for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer
of any Security of a series at the office or agency of the Issuer in a Place of Payment for such series, the Issuer shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and principal amount.
At the option of the Holder, Securities
of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and principal
amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities, which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration
of transfer or exchange of Securities shall be the valid obligations of the Issuer and each of the Guarantors, respectively, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities and the Guarantees, respectively, surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder
thereof or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, Section 906 or Section 1107 not involving any transfer.
If the Securities of any series (or of any
series and specified tenor) are to be redeemed in part, the Issuer shall not be required (A) to issue, register the transfer of
or exchange any Securities of such series (or of such series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Neither the Trustee nor the Securities Registrar
shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the
Securities Act, applicable state securities laws or any substantially similar federal, state or local law.
The provisions of clauses (1), (2), (3)
and (4) of this paragraph shall apply only to Global Securities:
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(1)
|
Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.
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(2)
|
Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified
as contemplated by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the Issuer that it is unwilling or unable or no longer permitted
under applicable law to continue as Depositary for such Global Security or if the Depositary ceases to be eligible under this Indenture
to act as Depositary and the Issuer does not appoint a successor Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and a request has been made for such exchange or (C) the Issuer
so directs the Trustee by a Issuer Order.
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(3)
|
Subject to clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 301,
any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for
a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
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(4)
|
Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section 305, Section 304, Section 306, Section 906 or Section 1107 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a nominee thereof.
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Section
|
306.
Mutilated,
Destroyed, Lost and Stolen Securities
.
|
If any mutilated Security is surrendered
to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer
and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a
bona fide
purchaser, the Issuer shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Issuer or any of the Guarantors in its or their discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under
this Section 306, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of counsel to the Issuer and the fees and
expenses of the Trustee and its counsel) connected therewith.
Every new Security of any series issued
pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security and shall constitute an original additional
contractual obligation of the Issuer whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of such series duly issued hereunder.
The provisions of this Section 306 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
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Section
|
307.
Payment of
Interest; Interest Rights Preserved
.
|
Except as otherwise provided as contemplated
by Section 301 with respect to any series of Securities, interest on any 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 Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any 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 Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Issuer or any of the Guarantors, at its election in each case,
as provided in clause (1) or (2) below:
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(1)
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The Issuer or the Guarantors may elect to make payment of any Defaulted Interest payable on Securities of a series to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer or
the Guarantors shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the Issuer or the Guarantors, as the case may be, shall
deposit with the Trustee an amount of money 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 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
notice of the proposed payment. The Trustee shall promptly notify the Issuer and the Guarantors of such Special Record Date and,
in the name and at the expense of the Issuer or the Guarantors, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
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(2)
|
The Issuer or any of the Guarantors may make payment of any Defaulted Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the Issuer or the Guarantors to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this
Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity
is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for
payment) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be
payable. Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this
paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
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Section
|
308.
Persons Deemed
Owners
.
|
Prior to due presentment of a Security for
registration of transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and, subject to Section 307, any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Issuer, the Guarantors, the Trustee nor any agent of the Issuer, the Guarantors
or the Trustee shall be affected by notice to the contrary.
None of the Trustee, the Paying Agent or
the Security Registrar shall have any responsibility or obligation to any beneficial owner in a Global Security, an agent member
or participant
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any agent
member or participant, with respect to any ownership interest in the Securities or with respect to the delivery to any agent member
or participant, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Securities and this Indenture shall be given or made only to or upon the order
of the registered holders (which shall be the Depositary or its nominee in the case of the Global Security). The rights of beneficial
owners in the Global Security shall be exercised only through the Depositary subject to the applicable procedures. The Trustee,
the Paying Agent and the Security Registrar shall be entitled to rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any beneficial owners. The Trustee, the Paying Agent
and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered holder
of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal,
premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or
holder of a beneficial ownership interest in such Global Security) as the sole holder of such Global Security and shall have no
obligations to the beneficial owners thereof. None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility
or liability for any acts or omissions of the Depositary with respect to such Global Security, for the records of any such depositary,
including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between
the Depositary and any Agent Member or between or among the Depositary, any such Agent Member and/or any holder or owner of a beneficial
interest in such Global Security, or for any transfers of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect
to any Global Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with
respect to such Global Security or shall impair, as between such Depositary and owners of beneficial interests in such Global Security,
the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such
Global Security.
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Section
|
309.
Cancellation
.
|
All Securities surrendered for payment,
redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer or the Guarantors
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the
Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of in accordance with its customary procedures. The Trustee shall provide the Issuer a list
of all Securities that have been cancelled from time to time as requested in writing by the Issuer.
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Section
|
310.
Computation
of Interest
.
|
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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|
Section
|
311.
CUSIP Numbers
.
|
The Issuer in issuing any series of the
Securities may use “CUSIP”, “ISIN” or other similar numbers and/or other similar numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption with respect to
such series;
provided
that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuer shall promptly inform the Trustee, in writing, of any change in the “CUSIP”,
“ISIN” or other similar numbers.
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Section
|
312.
Original Issue
Discount
.
|
If any of the Securities is an Original
Issue Discount Security, the Issuer shall file with the Trustee promptly at the end of each calendar year (1) a written notice
specifying the amount of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original
Issue Discount Securities as of the end of such year and (2) such other specific information relating to such original issue discount
as may then be relevant under the Internal Revenue Code.
Article
IV
SATISFACTION AND DISCHARGE
|
|
Section
|
401.
Satisfaction
and Discharge of Indenture
.
|
This Indenture shall, upon Issuer Request,
cease to be of further effect with respect to any series of Securities specified in such Issuer Request (except as to any surviving
rights of registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at
the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such
series, when:
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(A)
|
all outstanding Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been
mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantors, as the case
may be, and thereafter repaid to the Issuer or the Guarantors, as the case may be, or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
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(B)
|
all such Securities of such series not theretofore delivered to the Trustee for cancellation
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(i)
|
have become due and payable, or
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(ii)
|
will become due and payable at their Stated Maturity within one year of the date of deposit, or
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(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 Issuer and the Guarantors jointly and severally,
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and the Issuer or the Guarantors, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities,
money in an amount sufficient without reinvestment
,
to pay
and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and premium, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
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(2)
|
the Issuer or, if applicable, the Guarantors, have paid or caused to be paid all other sums payable hereunder by the Issuer
or the Guarantors; and
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(3)
|
the Issuer or, if applicable, the Guarantors have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
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Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Issuer to the Trustee under Section 607 and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
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Section
|
402.
Application
of Trust Money
.
|
Subject to the provisions of the last paragraph
of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the applicable series of Securities and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer 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 has been deposited with the Trustee. All money deposited
with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted
into other property shall be returned to the Issuer upon Issuer Request or, if applicable, to the Guarantors upon Guarantor Request,
to the extent originally deposited by such party. The Issuer or the Guarantors, as the case may be, may direct by an Issuer Order
or Guarantor Order, as applicable, the investment of any money deposited with the Trustee pursuant to Section 401, without distinction
between principal and income, in (1) United States Treasury securities with a maturity of one year or less or (2) a money market
fund that invests solely in short-term United States Treasury securities (including money market funds for which the Trustee or
an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian,
notwithstanding that (a) the Trustee charges and collects fees and expenses from such funds for services rendered and (b) the Trustee
charges and collects fees and expenses for services rendered pursuant to this Indenture at any time) and from time to time the
Issuer or the Guarantors, as the case may be, may direct the reinvestment of all or a portion of such money in other securities
or funds meeting the criteria specified in clause (1) or (2) of this Section 402.
Article
V
REMEDIES
|
|
Section
|
501.
Events of Default
.
|
Except as may be otherwise provided pursuant
to Section 301 for Securities of any series, an “
Event of Default
” means, whenever used herein or in a Security
issued hereunder with respect to Securities of any series, any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
|
|
(1)
|
the Issuer defaults in the payment of any installment of interest on any Security of such series for 30 days after becoming
due;
|
|
|
(2)
|
the Issuer defaults in the payment of the principal of or premium, if any, on any Security of such series when the same becomes
due and payable at its Stated Maturity, upon redemption, upon declaration or otherwise;
|
|
|
(3)
|
the Issuer defaults in the delivery when due of any securities, cash or other property (including, without limitation, any
common shares) when required to be delivered upon conversion of any convertible debt security of such series or upon the exchange
of any debt security of such series which is exchangeable for common shares or other securities or property (other than an exchange
of debt securities of such series for other debt securities of the same series);
|
|
|
(4)
|
the Issuer defaults in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series;
|
|
|
(5)
|
the Issuer or, if applicable, the Guarantors default in the performance of, or breaches, any of their covenants and agreements
in respect of any Security of such series contained in this Indenture or in the Securities of such series (other than those referred
to in (1), (2), (3) or (4) above), and such default or breach continues for a period of 60 days (except that, in the case of a
default in the performance of or breach of any reporting covenant otherwise provided pursuant to Section 301 for Securities
of any series, such period shall be 120 days) after the notice specified below;
|
|
|
(6)
|
if the Securities of such series are guaranteed Securities, the guarantee of the Securities of such series by any Guarantor
shall for any reason cease to be, or shall for any reason be asserted in writing by such Guarantor or the Issuer not to be, in
full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by this Indenture;
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|
|
(7)
|
the Issuer or the Guarantors, as the case may be, pursuant to or within the meaning of the Bankruptcy Law (as defined below):
|
(A)
commences a voluntary case or proceeding;
(B)
consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C)
consents to the appointment of a Custodian (as defined below) of it or for all or substantially all of its property;
(D)
makes a general assignment for the benefit of its creditors;
(E)
files a petition in bankruptcy or answer or consent seeking reorganization or relief;
(F)
consents to the filing of such petition or the appointment of or taking possession by a Custodian; or
(G)
takes any comparable action under any foreign laws relating to insolvency;
|
|
(8)
|
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
(A)
is for relief against the Issuer or, if applicable, the Guarantors in an involuntary case, or adjudicates the Issuer or
the Guarantors insolvent or bankrupt;
(B)
appoints a Custodian of the Issuer or, if applicable, the Guarantors or for all or substantially all of the property of
the Issuer or the Guarantors; or
(C)
orders the winding-up or liquidation of the Issuer or, if applicable, the Guarantors (or any similar relief is granted under
any foreign laws),
and the order or decree remains unstayed and in effect
for 60 days; or
|
|
(9)
|
any other Event of Default provided by Section 301 with respect to Securities of such series occurs.
|
The term “
Bankruptcy Law
”
means Title 11, United States Code, or any similar U.S. federal or state, Canadian, provincial or other foreign law for the relief
of debtors. The term “
Custodian
” means any custodian, receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
A Default with respect to Securities of
any series under clause (6) of this Section 501 shall not be an Event of Default until the Trustee (by written notice to the Issuer
and the Guarantors) or the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series (by
written notice to the Issuer, the Guarantors and the Trustee) gives notice of the Default and the Issuer or the Guarantors does
not cure such Default within the time specified in clause (6) after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a “
Notice of Default
.”
|
|
Section
|
502.
Acceleration
of Maturity; Rescission and Annulment
.
|
If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified in Section 501(7) or Section 501(8)) occurs and
is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series may declare the principal amount of all the Securities of such series (or, if any Securities of such
series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), together with any accrued and unpaid interest thereon, to be due and payable immediately, by a notice in writing
to the Issuer and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration, such principal amount
(or specified amount), together with any accrued and unpaid interest and premium, if any, thereon, shall become immediately due
and payable. If an Event of Default specified in Section 501(7) or Section 501(8) with respect to the Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of such series (or, in the case of any Security of such
series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be
specified by the terms thereof), together with any accrued and unpaid interest and premium thereon, shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. Upon payment of such
amount in the currency in which such Securities are denominated (except as otherwise provided), all obligations of the Issuer and
the Guarantors, as applicable, in respect of the payment of principal and interest of the Securities of such series shall terminate.
Except as may otherwise be provided pursuant
to Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration with respect
to the 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 V provided, the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of such series, by written notice to the Issuer, the Guarantors and the Trustee, may rescind and annul
such declaration and its consequences if:
|
|
(1)
|
the Issuer or the Guarantors have paid or deposited with the Trustee a sum sufficient to pay:
|
|
|
(A)
|
all overdue interest on all Securities of such series,
|
|
|
(B)
|
the principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates prescribed therefor in the Securities of such series,
|
|
|
(C)
|
to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such 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;
|
|
|
(2)
|
all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities
of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section
512; and
|
|
|
(3)
|
the rescission would not conflict with any judgment or decree.
|
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.
|
Each of the Issuer and the Guarantors covenants
that if (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or (2) default is made in the payment of the principal of or premium, if any, on any
Security at the Maturity thereof, it will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and premium, if any, and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary 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 any judicial proceeding relative
to the Issuer or the Guarantors (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee any amount due it and any predecessor Trustee under
Section 607.
No provision of this Indenture shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
|
|
Section
|
505.
Trustee May
Enforce Claims Without Possession of Securities
.
|
All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, any predecessor Trustee under Section 607, its agents and counsel,
be for the ratable benefit of the Holders of the Securities 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 V or, after an Event of Default, any money or other property distributable in respect of the Issuer’s obligations
under this Indenture shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee (including any predecessor trustee) hereunder;
SECOND: To the payment of the
amounts then due and unpaid for principal of and premium, if any, and interest on the Securities 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 Securities for principal and premium, if any, and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Issuer or the Guarantors, as applicable.
|
|
Section
|
507.
Limitation
on Suits
.
|
No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver, assignee, trustee, liquidator or sequestrator (or similar official) 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 Securities
of such series;
|
|
|
(2)
|
the Holders of not less than 25% in aggregate principal amount of the Outstanding 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 security or indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
|
|
|
(4)
|
the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of
indemnity; 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 aggregate principal amount of the Outstanding 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 of 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.
Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert Securities
.
|
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and, subject to Section 307, interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repayment, on the Redemption Date or date for repayment, as the case may be, and,
if the terms of such Security so provide, to convert such Security in accordance with its terms) and to institute suit for the
enforcement of any such payment and, if applicable, any such right to convert, and such rights shall not be impaired without the
consent of such Holder.
|
|
Section
|
509.
Rights and
Remedies Cumulative
.
|
Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 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
|
510.
Delay or Omission
Not Waiver
.
|
No delay or omission of the Trustee or of
any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article
V 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
|
511.
Control by
Holders
.
|
The Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities (or, in the case of a matter applicable to less than all Outstanding
Securities, Holders of not less than a majority in aggregate principal amount of all Outstanding Securities affected by such matter)
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 Securities of such series;
provided
that:
|
|
(1)
|
such direction shall not be in conflict with any rule of law or with this Indenture,
|
|
|
(2)
|
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
|
|
|
(3)
|
the Trustee shall have the right to require compliance with Section 603(5).
|
|
|
Section
|
512.
Waiver of Past
Defaults
.
|
The Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its consequences, except a default
|
|
(1)
|
in the payment of the principal of or premium, if any, or interest on any Security of such series, held by a non-consenting
Holder, or
|
|
|
(2)
|
in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series 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
|
513.
Undertaking
for Costs
.
|
In any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including attorneys’ fees and expenses, against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act;
provided
that neither this Section 513 nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any suit instituted by the Issuer, the Guarantors or
the Trustee, a suit by a Holder under Section 508, or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding
Securities.
|
|
Section
|
514.
Waiver of Usury,
Stay or Extension Laws
.
|
Each of the Issuer and the Guarantors 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 usury, stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and each of the Issuer and the Guarantors (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
|
|
Section
|
515.
Restoration
of Rights and Remedies
.
|
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Article
VI
THE TRUSTEE
|
|
Section
|
601.
Certain Duties
and Responsibilities of Trustee
.
|
|
|
(1)
|
Except during the continuance of an Event of Default with respect to any series of Securities,
|
|
|
(A)
|
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect
to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee
with respect to such series; and
|
|
|
(B)
|
in the absence of bad faith on its part, the Trustee may conclusively rely with respect to the Securities of such series, 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, statements, opinions or conclusions stated therein).
|
|
|
(2)
|
In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with respect to the Securities of such series, 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.
|
|
|
(3)
|
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
|
|
|
(A)
|
this Section 601(3) shall not be construed to limit the effect of Section 601(1) or Section 601(4);
|
|
|
(B)
|
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; and
|
|
|
(C)
|
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series, determined
as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
|
|
|
(4)
|
No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it.
|
|
|
(5)
|
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 601.
|
|
|
(6)
|
Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be
sufficient if signed by an Officer of the Issuer and such Officer’s name is evidenced on a certificate setting forth the
names of individuals and/or titles of officers authorized to take specified actions pursuant to this Indenture.
|
|
|
(7)
|
In the absence of bad faith, negligence or willful misconduct on the part of the Trustee, the Trustee shall not be responsible
for the application of any money by any Paying Agent other than the Trustee.
|
|
|
(8)
|
No provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts,
receive or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise
any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Trustee shall
be construed to be a duty.
|
|
|
Section
|
602.
Notice of Defaults
.
|
If a Default or an Event of Default occurs
with respect to Securities of any series and is continuing and if it is actually known to a Responsible Officer of the Trustee,
the Trustee shall mail to each Holder of Securities of such series, as their names and addresses appear in the Security Register,
notice of the Default within 90 days after it is known to a Responsible Officer. Except in the case of a Default in payment of
principal of (or premium, if any) or interest on any Security 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 committee of Responsible Officers in good faith determines
that withholding such notice is in the interests of Holders of Securities of such series.
|
|
Section
|
603.
Certain Rights
of Trustee
.
|
Subject to the provisions of Section 601:
|
|
(1)
|
the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or any document believed by it to be genuine and to have been signed or presented by the proper party or parties;
|
|
|
(2)
|
any request or direction of the Issuer or the Guarantors mentioned herein shall be sufficiently evidenced by an Issuer Request
or Issuer Order, or Guarantor Request or Guarantor Order, as the case may be, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution thereof;
|
|
|
(3)
|
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, conclusively rely upon an Officer’s Certificate;
|
|
|
(4)
|
the Trustee may consult with counsel of its selection 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;
|
|
|
(5)
|
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 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;
|
|
|
(6)
|
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or any 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 Issuer or the Guarantors personally or by agent or attorney at the sole cost
of the Issuer or the Guarantors, as applicable, and shall incur no liability or additional liability of any kind by reason of such
inquiry or investigation;
|
|
|
(7)
|
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;
|
|
|
(8)
|
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and to its agents;
|
|
|
(9)
|
the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
|
|
|
(10)
|
in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
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|
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(11)
|
in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any provision of
any law or regulation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, , sabotage, epidemics, riots and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services (it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance
as soon as practicable under the circumstances);
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(12)
|
the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer shall have actual
knowledge thereof, and such notice references the Securities and this Indenture;
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(13)
|
a permissive right of the Trustee to take any action under this Indenture shall not be construed as a duty;
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(14)
|
the Trustee may request that the Issuer and the Guarantors deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed
by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded; and
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(15)
|
notwithstanding any other provision of this Indenture, the Trustee shall be entitled to make a deduction or withholding from
any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the
extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations
thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any
certification or other requirements in respect of the Securities, in which event the Trustee shall make such payment after such
withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and
shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.
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Section
|
604.
Not Responsible
for Recitals or Issuance of Securities
.
|
The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Guarantors,
as the case may be, 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 Securities. The Trustee shall not be accountable for the use or application
by the Issuer of the Securities or the proceeds thereof. The Trustee shall not be responsible to make any calculation with respect
to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the Issuers’ compliance with
or the breach of, or cause to be performed or observed, any representation, warranty, or covenant, or agreement of any Person,
other than the Trustee, made in this Indenture.
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Section
|
605.
May Hold Securities
.
|
The Trustee, any Paying Agent, any Security
Registrar or any other agent of the Issuer or the Guarantors, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 608 and Section 613, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
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Section
|
606.
Money Held
in Trust
.
|
Money held by the Trustee in trust hereunder
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuer or the Guarantors, as applicable.
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|
Section
|
607.
Compensation
and Reimbursement
.
|
The Issuer and the Guarantors, as the case
may be, jointly and severally, agree:
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|
(1)
|
to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Issuer and the Trustee
hereto for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(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 reasonable expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ), except
any such expense, disbursement or advance as may be attributable to its negligence or, willful misconduct, and the Trustee shall
provide the Issuer reasonable notice of any expenditure not in the ordinary course of business; and
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(3)
|
to indemnify each of the Trustee or any predecessor Trustee and their officers, agents, directors and employees for, and to
hold them harmless against, any and all loss, damage, claims, liability or expense, including fees and expenses of counsel, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
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In addition to, but without prejudice to
its other rights under this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(A)(7) or (8), the expenses (including the reasonable charges and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
“Trustee” for purposes of this
Section shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct or bad faith of any successor
Trustee hereunder shall not affect the rights of any other predecessor Trustee hereunder.
As security for the performance of the obligations
of the Issuer under this Section, the Trustee shall have a lien prior to the Securities as to all property and funds held or collected
by it hereunder, except with respect to funds held in trust for the payment of principal (and premium, if any) on particular Securities.
The provisions of this Section 607 shall
survive the satisfaction and discharge of the Indenture, the termination for any reason of this Indenture and the resignation or
removal of the Trustee.
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|
Section
|
608.
Conflicting
Interests
.
|
If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 310(b) 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, Section 310(b) of the Trust Indenture Act and this
Indenture.
To the extent permitted by Section 310(b)
of the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
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Section
|
609.
Corporate Trustee
Required; Eligibility
.
|
There shall at all times be one (and only
one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital
and surplus of at least $50,000,000 and has its Corporate Trust Office in a city in the United States that is acceptable to the
Issuer and the Guarantors. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its
most recent annual report of condition so published. If at any time the Trustee with respect to the Securities of any series shall
cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article VI.
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|
Section
|
610.
Resignation
and Removal; Appointment of Successor
.
|
No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice thereof to the Issuer and the Guarantors. If the instrument
of acceptance by a successor Trustee required by Section 611 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 Issuer or the Guarantors, any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities
of such series, upon written notice delivered to the Trustee, to the Issuer and the Guarantors. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the Trustee being removed may petition, at the expense of the Issuer or the Guarantors, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
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(1)
|
the Trustee shall fail to comply with Section 608 after written request therefor by the Issuer, the Guarantors or any Holder
who has been a
bona fide
Holder of a Security for at least six months, or
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(2)
|
the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuer,
the Guarantors or any such Holder, or
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(3)
|
the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (A) the Issuer or the Guarantors may
remove the Trustee with respect to all Securities or (B) subject to Section 513, Holders of 10% in aggregate principal amount of
Securities of any series who have been
bona fide
Holders of such Securities for at least six months may, on behalf of themselves
and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Issuer or the Guarantors shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered
to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the Issuer or the Guarantors. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Issuer, the Guarantors or the Holders and accepted
appointment in the manner required by Section 611, Holders of 10% in aggregate principal amount of Securities of any series who
have been
bona fide
Holders of Securities of such series for at least six months may, on behalf of themselves and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Issuer or the Guarantors, as the case
may be, shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
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Section
|
611.
Acceptance
of Appointment by Successor
.
|
In case of the appointment hereunder of
a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Issuer, the Guarantors, as the case may be, and the retiring Trustee a written instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee, but, on the
request of the Issuer, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges and subject
to its lien provided for in Section 607, execute and deliver a written instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of
a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, as the case
may be, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and 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 Securities of that or those series and the Guarantees thereof
to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series and the Guarantees thereof 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 Securities of that or those series to which the appointment of such successor Trustee relates; but,
on request of the Issuer, the Guarantors or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee,
the Issuer and the Guarantors, as the case may be, shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph,
as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VI.
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Section
|
612.
Merger, Conversion,
Consolidation or Succession to Business
.
|
Any Person into which the Trustee may be
merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder;
provided
that such Person shall be otherwise qualified and eligible
under this Article VI, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities; and in case at that time any Securities
shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
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|
Section
|
613.
Preferential
Collection of Claims Against Issuer
.
|
If and when the Trustee shall be or become
a creditor of the Issuer or the Guarantors, as the case may be (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuer or the Guarantors (or
any such other obligor) .
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|
Section
|
614.
Appointment
of Co-Trustees
.
|
At any time or times, for the purpose of
meeting the legal requirements of any applicable jurisdiction, each of the Issuer and the Trustee shall have the power to appoint,
and, upon the written request of the Trustee or of the Holders of at least 25% in principal amount of the Securities then Outstanding,
the Issuer and each applicable Guarantor shall for such purpose join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by the Trustee and, if no Event of Default shall have
occurred and be continuing, by the Issuer either to act as co-trustee, jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this
Section 614. If the Issuer or any applicable Guarantor does not join in such appointment within fifteen days after the receipt
by it of a request so to do, or if an Event of Default shall have occurred and be continuing, the Trustee alone shall have power
to make such appointment.
Should any written instrument or instruments
from the Issuer or any Guarantor be required by any co-trustee or separate trustee so appointed to more fully confirm to such co-trustee
or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Issuer and/or such Guarantor.
Every co-trustee or separate trustee shall,
to the extent permitted by law and applicable regulation, but to such extent only, be appointed subject to the following conditions:
(1) the Securities shall be
authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities,
cash and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(2) the rights, powers, duties
and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by such appointment shall be conferred
or imposed upon and exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate trustee jointly,
as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law
or applicable regulation of any jurisdiction in which any particular act is to be performed by the Trustee shall be incompetent
or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee, but solely at the direction of the Trustee;
(3) the Trustee at any time,
by an instrument in writing executed by it, with the concurrence of the Issuer, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 614, and, if an Event of Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the
Issuer. The Issuer and each applicable Guarantor shall join with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section 614; and
(4) neither the Trustee nor
any co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder.
Every instrument appointing any separate
trustee or co-trustee shall refer to this Indenture and the conditions of this
Article VI
. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or
rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Trustee. Every such instrument
shall be filed with the Trustee.
Any separate trustee or co-trustee may at
any time constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law
and applicable regulations, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of his, her or its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law and applicable regulations,
without appointment of a new or successor trustee.
Article
VII
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE ISSUER AND THE GUARANTORS
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|
Section
|
701.
Issuer to Furnish
Trustee Names and Addresses of Holders
.
|
If the Trustee is not the Security Registrar,
the Issuer shall cause the Security Registrar to furnish to the Trustee, in writing at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of Securities of each series.
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|
Section
|
702.
Preservation
of Information; Communications to Holders
.
|
The Trustee shall preserve, in as current
a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may dispose of any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving
and holding the same, agrees with the Issuer, the Guarantors and the Trustee that none of the Issuer, the Guarantors, the Trustee
or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
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Section
|
703.
Reports by
Trustee
.
|
The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. The Trustee shall promptly deliver to the Issuer and the Guarantors a copy of
any report it delivers to Holders pursuant to this Section 703.
A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system, if any,
upon which any Securities are listed (provided the Issuer notifies the Trustee of any such listing), with the Commission, the Issuer
and the Guarantors. The Issuer and the Guarantors will promptly notify the Trustee when any Securities are listed on any stock
exchange or automated quotation system or delisted therefrom.
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|
Section
|
704.
Reports by
the Issuer and the Guarantors
.
|
The Issuer and any Guarantors shall comply
with all the applicable provisions of the Trust Indenture Act. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and shall not constitute a representation or warranty as to the accuracy or completeness of
the reports, information and documents. The Trustee’s receipt of such is for informational purposes only and shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s
or the Guarantors’ compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates).
Article
VIII
CONSOLIDATION, MERGER AND SALE OF ASSETS
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Section
|
801.
Issuer May
Merge or Transfer Assets Only on Certain Terms
.
|
The Issuer may consolidate with or merge with
or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets
to, in one transaction or a series of related transactions, any other Person,
provided
that:
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(1)
|
the Issuer shall be the continuing entity, or the resulting, surviving or transferee Person shall be a corporation, partnership,
limited liability company, trust or other entity organized and validly existing under the laws of the United States of America
any state thereof or the District of Columbia or Canada or any province or territory thereof, and such successor Person (if not
the Issuer) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, all the obligations
of the Issuer under the Securities and this Indenture and, for each Security that by its terms provides for conversion, shall have
provided for the right to convert such Security in accordance with its terms;
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(2)
|
immediately after giving effect to such transaction and the assumption contemplated by clause (1) above, no Default or Event
of Default shall have occurred and be continuing; and
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|
(3)
|
the Issuer shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and such supplemental indenture, if any, complies with this Indenture and
all conditions precedent provided for in the Indenture have been complied with.
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|
Section
|
802.
Successor Person
Substituted
.
|
Upon any consolidation of the Issuer with,
or merger of the Issuer into, any other Person or any sale, transfer, lease or conveyance of all or substantially all of the properties
and assets of the Issuer, in each case in accordance with Section 801, the successor Person shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture, with the same effect as if such successor Person
had been an original party to this Indenture, and the Issuer shall be released from all of its liabilities and obligations under
this Indenture and the Securities.
Article
IX
modifications and SUPPLEMENTAL INDENTURES
|
|
Section
|
901.
Modifications
or Supplemental Indentures Without Consent of Holders
.
|
Without the consent of any Holders, the
Issuer, the Guarantors, as applicable, and the Trustee, at any time and from time to time, may modify this Indenture or enter into
one or more indentures supplemental hereto, for any of the following purposes:
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|
(1)
|
to add to the covenants for the benefit of the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantors, as the case may
be;
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|
(2)
|
to evidence the succession of another Person to the Issuer or the Guarantors, as the case may be, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer or the Guarantors, as the
case may be, pursuant to Article VIII or any applicable indentures supplemental hereto;
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(3)
|
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series);
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(4)
|
to add additional guarantees or additional Guarantors in respect of all or any series of Securities under this Indenture (which
supplemental indenture may be in the form of Exhibit A), and to evidence the release and discharge of any Guarantor from its obligations
under its Guarantees of all or any series of Securities and its obligations under this Indenture in accordance with the terms of
this Indenture;
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(5)
|
to secure the Securities issued hereunder or to provide that any of the obligations under the Securities or the Indenture shall
be guaranteed and the terms and conditions for the release or substitution of the security or guarantee;
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|
(6)
|
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611;
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(7)
|
to provide for the issuance of additional Securities of any series;
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(8)
|
to establish the form or terms of Securities of any series or the Guarantees as permitted by Section 201 and Section 301;
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(9)
|
to comply with the rules of any applicable Depositary;
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(10)
|
to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities, provided that any such action will not adversely affect the interests of the Holders
of Securities of that series or any other series of Securities issued under the Indenture in any material respect;
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|
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(11)
|
to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in uncertificated form;
|
|
|
(12)
|
to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities;
provided
that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the modification
or the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become effective only when there is no Security described
in clause (i) Outstanding;
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|
|
(13)
|
to conform the text of this Indenture and the terms of any Securities to the “Description of the Debt Securities”
in an applicable registration statement or the comparable provisions in the applicable prospectus supplement to the extent the
“Description of the Debt Securities” in such applicable registration statement or such comparable provision in such
prospectus supplement was intended to be a verbatim recitation of a provision of this Indenture or Securities, which intent may
be evidenced by an Officer’s Certificate to that effect;
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|
|
(14)
|
to eliminate any conflict between the terms of the
Indenture and the Securities issued thereunder and the Trust Indenture Act;
|
|
|
(15)
|
to cure any ambiguity or omission or to correct or
supplement any provision of this Indenture which may be defective or inconsistent with any other provision herein; and
|
|
|
(16)
|
to change any other provision with respect to matters
or questions arising under this Indenture which will not be inconsistent with any provision of the Indenture;
provided
that such action pursuant to this clause (16) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.
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|
|
Section
|
902.
Modifications
or Supplemental Indentures With Consent of Holders
.
|
With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such modifications or supplemental
indenture (including consents obtained in connection with a tender offer or exchange for Securities), by Act of said Holders delivered
to the Issuer, the Guarantors, as applicable, and the Trustee, the Issuer, the Guarantors, as applicable, and the Trustee may modify
this Indenture or enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture;
provided
,
however
, no such modifications or supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of such series affected thereby:
|
|
(1)
|
change the Stated Maturity of the principal of, or any installment of principal or interest on, any Security
;
|
|
|
(2)
|
reduce the principal amount of any Security or reduce the amount of the principal of any Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or reduce the rate of interest on any Security
or change or have the effect of changing the time for payment of interest, including defaulted interest, if any, on any Securities
under this Indenture;
|
|
|
(3)
|
reduce any premium payable upon the redemption of or change the date on which any Security may or must be redeemed;
|
|
|
(4)
|
change the coin or currency in which the principal of or premium, if any, or interest on any Security is payable;
|
|
|
(5)
|
make any change in provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any,
and interest on such Securities or to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
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|
|
(6)
|
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such modifications or supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain Defaults or Events of Default hereunder and their consequences) provided for
in this Indenture;
|
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|
(7)
|
release any Guarantor from any of its obligations under any of its Guarantees or the Indenture, except in accordance with the
terms of this Indenture;
|
|
|
(8)
|
modify any of the provisions of this Section 902, Section 512 or Section 1005, except to increase any such percentage vote
required or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby;
provided
,
however
, that this clause 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 902 and Section 1005, or the deletion of this proviso, in accordance with the requirements of Section 611
and Section 901(6); or
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(9)
|
if the Securities of any series are convertible into or for any other securities or property of the Issuer or any other Person,
make any change that adversely affects in any material respect the right to convert any Security of such series (except as permitted
by Section 901) or decrease the conversion or exchange rate or increase the conversion price of any such Security of such series,
unless such decrease or increase is permitted by the terms of such Security.
|
A modification or 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 Securities, or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of
Holders under this Section 902 to approve the particular form of any proposed modification or supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
After a modification or supplemental indenture
under this Section 902 becomes effective, the Issuer and the Guarantors shall mail to the Holders a notice briefly describing such
modification or supplemental indenture or a copy of such modification or supplemental indenture. Any failure of the Issuer and
the Guarantors to mail such supplemental indenture, shall not in any way impair or affect the validity of any such modification
or supplemental indenture.
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|
Section
|
903.
Execution of
Supplemental Indentures
.
|
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article IX 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 and
that all conditions precedent in this Indenture to the execution of such supplemental indenture, if any, have been complied with;
provided
,
however
, that no such Opinion of Counsel shall be required in the case of any supplemental indenture executed
and delivered concurrently with the original execution and delivery of 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 IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
|
|
Section
|
905.
Conformity
with Trust Indenture Act
.
|
Every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act.
|
|
Section
|
906.
Reference in
Securities to Supplemental Indentures
.
|
Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article IX 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 Issuer and
the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of the Issuer and the
Guarantors, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Article
X
COVENANTS
|
|
Section
|
1001.
Payment of Principal, Premium, if
any, and Interest
.
|
The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay the principal of and premium, if any, and interest on
the Securities of such series in accordance with the terms of the Securities and this Indenture. Principal and interest shall be
considered paid on the date due if, on or before 11:00 a.m. (New York City time) on such date, the Trustee or the Paying Agent
(or, if the Issuer or any Subsidiary is the Paying Agent, the segregated account or separate trust fund maintained by the Issuer
or such Subsidiary pursuant to Section 1003) holds in accordance with this Indenture money sufficient to pay all principal and
interest then due.
The Issuer shall pay interest on overdue
principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful as provided in Section 307.
Notwithstanding anything to the contrary
contained in this Indenture, the Issuer, the Guarantors or the Paying Agent may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by any domestic or foreign taxing authorities from principal or interest
payments hereunder.
|
|
Section
|
1002.
Maintenance of Office or Agency
.
|
The Issuer will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of such series may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer or exchange, where Securities may be surrendered
for conversion, and where notices and demands to or upon the Issuer or the Guarantors in respect of the Securities of such series
or the Guarantees thereof, as the case may be, and this Indenture may be served. The Issuer will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. Each of the Issuer and the
Guarantors hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Issuer or the Guarantors may also from
time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such
designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Issuer or the Guarantors, as the case may be, will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to any Global Security, and
except as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office of the
Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration
of transfer or exchange, or where successor Securities may be delivered in exchange therefor;
provided
,
however
,
that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with
the provisions of this Indenture.
|
|
Section
|
1003.
Money for Securities Payments to Be
Held in Trust
.
|
If the Issuer shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or before each due date for the principal of or premium,
if any, or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of such
Securities a sum sufficient to pay the principal and premium, if any, and interest so becoming due until such sums shall be paid
to such Holders or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Issuer shall have one or more
Paying Agents for any series of Securities, it will, no later than 11:00 a.m. (New York City time) on each due date for the principal
of or premium, if any, or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held in trust for the Holders of such Securities entitled to the same, and (unless such Paying Agent is the Trustee)
the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent
for any series of 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 1003, that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Issuer in making any such payment.
The Issuer may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Issuer 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 Issuer 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.
Subject to any applicable abandoned property
law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal
of or premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal, premium
or interest has become due and payable shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Issuer (and, pursuant to the Guarantees thereof, the Guarantors) for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
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|
Section
|
1004.
Statement by Officers as to Default
.
|
The Issuer shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Issuer ending after the date hereof an Officer’s Certificate
signed by its principal executive officer, principal financial officer or principal accounting officer, stating whether or not,
to the knowledge of such Officer, the Issuer or the Guarantors are in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture applicable to it (without regard to any period of grace or requirement of notice provided
hereunder) and, if the Issuer or the Guarantors, as the case may be, shall be in default, specifying all such defaults and the
nature and status thereof of which such Officer may have knowledge.
|
|
Section
|
1005.
Waiver of Certain Covenants
.
|
Except as otherwise specified as contemplated
by Section 301 for Securities of such series, the Issuer or the Guarantors, as the case may be, may, with respect to the Securities
of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(20), Section 901(1) or Section 901(8) for the benefit of the Holders of such series or in Article VIII,
if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer or the Guarantors, as
the case may be, and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Article
XI
REDEMPTION OF SECURITIES
|
|
Section
|
1101.
Applicability of Article
.
|
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 such Securities) in accordance with this Article XI.
|
|
Section
|
1102.
Election to Redeem; Notice to Trustee
.
|
The election of the Issuer to redeem any
Securities shall be evidenced by a Board Resolution or an Officer’s Certificate or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election of the Issuer of the Securities of any series (including
any such redemption affecting only a single Security), the Issuer shall, at least fifteen (15) days prior (or such shorter period
as is acceptable to the Trustee) to the date notice of redemption is required to be mailed or caused to be mailed pursuant to Section
1104 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of the Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any restriction or condition on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with such restriction or condition.
Any notice of redemption may, at the Issuer’s
discretion, be subject to one or more restrictions or conditions, including completion of an equity offering or other corporate
transaction.
|
|
Section
|
1103.
Selection by Trustee of Securities
to Be Redeemed
.
|
If less than all the Securities of any series
are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, on a
pro
rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate (provided that, in the case of Global Securities,
the Depositary may select Global Securities for redemption pursuant to its Applicable Procedures) and which may provide for the
selection for redemption of a portion of the principal amount of any Security of such series;
provided
that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption
is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been
converted during a selection of securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Issuer
in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs
shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole
or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
|
|
Section
|
1104.
Notice of Redemption
.
|
Notice of redemption shall be given by first-class
mail (or in the case of Securities held in book-entry form, by electronic transmission), postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section
301 for Securities of a series), to each Holder of Securities to be redeemed (with a copy to the Trustee), at such Holder’s
address appearing in the Security Register.
All notices of redemption shall identify
the Securities to be redeemed and shall state:
|
|
(2)
|
the Redemption Price (or the method of calculating such price);
|
|
|
(3)
|
if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities
to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
|
|
|
(4)
|
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
|
|
|
(5)
|
the place or places where each such Security is to be surrendered for payment of the Redemption Price;
|
|
|
(6)
|
for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion;
|
|
|
(7)
|
that the redemption is for a sinking fund, if such is the case;
|
|
|
(8)
|
if applicable, any restrictions or conditions to such redemption; and
|
|
|
(9)
|
if applicable, the CUSIP numbers of the Securities of such series;
provided
,
however
, that no representation
will be made as to the correctness or accuracy of the CUSIP number, or any similar number, if any, listed in such notice or printed
on the Securities.
|
Notice of redemption of Securities to be
redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request (which may be rescinded or
revoked at any time prior to the time at which the Trustee shall have given such notice to the Holders), by the Trustee in the
name and at the expense of the Issuer. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Securities.
|
|
Section
|
1105.
Deposit of Redemption Price
.
|
By no later than 11:00 a.m. (New York City
time) on any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise)
accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities
called for redemption which are owned by the Issuer or a Subsidiary and have been delivered by the Issuer or such Subsidiary to
the Trustee for cancellation. All money, if any, earned on funds held by the Paying Agent shall be remitted to the Issuer. In addition,
the Paying Agent shall promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of the amounts
necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
If any Security called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption
of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307 or in the terms of such Security) be paid to the Issuer upon Issuer Request or, if
then held by the Issuer, shall be discharged from such trust.
|
|
Section
|
1106.
Securities Payable on Redemption Date
.
|
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Issuer at the Redemption Price, together, if applicable, with accrued interest to the Redemption
Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions
of Section 307;
provided
further
that, unless otherwise specified as contemplated by Section 301, if the Redemption
Date is after a Regular Record Date and on or prior to the Interest Payment Date, the accrued and unpaid interest shall be payable
to the Holder of the redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.
|
|
Section
|
1107.
Securities Redeemed in Part
.
|
Any Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor (with, if the Issuer, the Guarantors or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Issuer, the Guarantors and the Trustee duly executed
by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such Holder, in principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered, with the Guarantee thereof of the Guarantors.
Article
XII
SINKING FUNDS
|
|
Section
|
1201.
Applicability of Article
.
|
The provisions of this Article XII shall
be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated
by Section 301 for such Securities.
The minimum amount of any sinking fund payment
provided for by the terms of any series of Securities is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any series of Securities, the cash 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 Securities
of the series as provided for by the terms of such Securities.
|
|
Section
|
1202.
Satisfaction of Sinking Fund Payments
with Securities
.
|
The Issuer and the Guarantors (1) may deliver
Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of
a series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such Securities;
provided
that the Securities
to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
|
|
Section
|
1203.
Redemption of Securities for Sinking
Fund
.
|
Not less than 45 days (or such shorter period
as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities, the Issuer will deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant
to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall select
the 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 Issuer in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 1106
and Section 1107.
Article
XIII
DEFEASANCE AND COVENANT DEFEASANCE
|
|
Section
|
1301.
Issuer’s or Guarantors’
Option to Effect Defeasance or Covenant Defeasance
.
|
Unless otherwise provided as contemplated
by Section 301, Section 1302 and Section 1303 shall apply to all Securities and each series of Securities, and the Guarantees thereof,
denominated in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant
to Section 301 and upon compliance with the conditions set forth below in this Article XIII; and the Issuer or the Guarantors,
as the case may be, may elect, at its option at any time, to have Section 1302 and Section 1303 applied to any Securities or any
series of Securities and, in each case, the Guarantees thereof, designated pursuant to Section 301 as being defeasible pursuant
to such Section 1302 or Section 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon
compliance with the conditions set forth below in this Article XIII. Any such election shall be evidenced by a Board Resolution,
Officer’s Certificate or in another manner specified as contemplated by Section 301 for such Securities.
|
|
Section
|
1302.
Defeasance and Discharge
.
|
Upon the Issuer’s or the Guarantors’
exercise of its option, if any, to have this Section 1302 applied to any Securities or any series of Securities, and the Guarantees
thereof, or if this Section 1302 shall otherwise apply to any Securities or any series of Securities, each of the Issuer and the
Guarantors, as the case may be, shall be deemed to have been discharged from their obligations with respect to such Securities
and Guarantees as provided in this Section 1302 on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter
called “
Defeasance
”). For this purpose, such Defeasance means that each of the Issuer and the Guarantors shall
be deemed to have paid and discharged the entire indebtedness represented by such Securities and Guarantees and to have satisfied
all its other obligations under such Securities and Guarantees and this Indenture insofar as such Securities and Guarantees are
concerned (and the Trustee, at the expense of the Issuer or the Guarantors, as the case may be, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth
in such Section 1305, payments in respect of the principal of and premium, if any, and interest on such Securities when payments
are due, (2) the Issuer’s obligations with respect to such Securities and the Guarantors’ obligations with respect
to such Guarantees under Section 304, Section 305, Section 306, Section 1002 and Section 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article XIII. Subject to compliance with this Article XIII, the Issuer
or the Guarantors may exercise their option, if any, to have this Section 1302 applied to the Securities of any series and the
Guarantees thereof notwithstanding the prior exercise of its option, if any, to have Section 1303 applied to such Securities and
Guarantees.
|
|
Section
|
1303.
Covenant Defeasance
.
|
Upon the Issuer’s or the Guarantors’
exercise of their option, if any, to have this Section 1303 applied to any Securities or any series of Securities, and the Guarantees
thereof, or if this Section 1303 shall otherwise apply to any Securities or any series of Securities, and the Guarantees thereof,
(1) the Issuer shall be released from its obligations under, and the Guarantors, as the case may be, shall have no liability in
respect of, Section 801(3), any similar provision contained in any supplemental indenture to this Indenture applicable to the Guarantors
and any covenants provided pursuant to Section 301(20), Section 901(1) or Section 901(8) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Section 501(5) and Section 501(9) shall be deemed not to be or result
in an Event of Default, in each case with respect to such Securities and Guarantees as provided in this Section 1303 on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter called “
Covenant Defeasance
”).
For this purpose, such Covenant Defeasance means that, with respect to such Securities and Guarantees, each of the Issuer and the
Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any
such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture
and such Securities and Guarantees shall be unaffected thereby.
|
|
Section
|
1304.
Conditions to Defeasance or Covenant
Defeasance
.
|
The following shall be the conditions to
the application of Section 1302 or Section 1303 to any Securities or any series of Securities, and the Guarantees thereof:
|
|
(1)
|
The Issuer or the Guarantors shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee
which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article XIII applicable
to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide money in an amount,
or (C) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and premium, if any, and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such Securities.
|
|
|
(2)
|
In the event of an election to have Section 1302 apply to any Securities or any series of Securities, and the Guarantees thereof,
the Issuer or the Guarantors shall have delivered to the Trustee an Opinion of Counsel stating that, subject to customary assumptions
and exclusions, (A) the Issuer or the Guarantors have 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 the applicable U.S. federal income tax law,
in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders and beneficial owner
of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
|
|
|
(3)
|
In the event of an election to have Section 1303 apply to any Securities or any series of Securities, and the Guarantees thereof,
the Issuer or the Guarantors shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary
assumptions and exclusions, the Holders and beneficial owner of such Securities will not recognize gain or loss for U.S. federal
income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will
be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
|
|
|
(4)
|
No Default or Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing
at the time of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to
make such deposit and any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens
in connection therewith).
|
|
|
(5)
|
Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other
material agreement or material instrument to which the Issuer or the Guarantors are a party or by which it is bound.
|
|
|
(6)
|
The Issuer or the Guarantors shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which
Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent with respect
to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the satisfaction of the condition in
clause (4)).
|
Before or after a deposit, the Issuer or
the Guarantors may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance
with Article XI.
|
|
Section
|
1305.
Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions
.
|
Subject to the provisions of the last paragraph
of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred
to collectively as the “
Trustee
”) pursuant to Section 1304 in respect of any Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly
or through any such Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and premium, if any, and interest, but money
so held in trust need not be segregated from other funds except to the extent required by law.
The Issuer or the Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities;
provided
that the Trustee shall be entitled to
charge any such tax, fee or other charge to such Holder’s account.
Anything in this Article XIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer or the Guarantors from time to time upon Issuer Request or Guarantor
Request, as the case may be, any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any
Securities which are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
|
|
Section
|
1306.
Reinstatement
.
|
If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article XIII with respect to any Securities (and the Guarantees thereof) by reason of
any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities and Guarantees from which the Issuer or the Guarantors have been
discharged or released pursuant to Section 1302 or Section 1303 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIII with respect to such Securities and Guarantees, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities and Guarantees in accordance
with this Article XIII;
provided
,
however
, that (a) if the Issuer or the Guarantors make any payment of principal
of or premium, if any, or interest on any such Security following such reinstatement of its obligations, the Issuer or the Guarantors,
as the case may be, shall be subrogated to the rights, if any, of the Holders of such Securities to receive such payment from the
money so held in trust and (b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental
authority, the Trustee or Paying Agent shall return all such money and U.S. Government Obligations to the Issuer or the Guarantors,
as the case may be, promptly after receiving a written request therefor at any time, if such reinstatement of the obligations of
the Issuer or the Guarantors, as the case may be, has occurred and continues to be in effect.
Article
XIV
REPAYMENT AT THE OPTION OF HOLDERS
|
|
Section
|
1401.
Applicability of Article
.
|
Repayment of Securities of any series before
their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article XIV.
|
|
Section
|
1402.
Repayment of Securities
.
|
Securities of any series subject to repayment
in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid
at a price equal to the principal amount thereof and premium, if any, thereon, together with interest thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Issuer covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money sufficient to pay the principal (or, if so provided by the terms of the Securities
of any series, a percentage of the principal) of, the premium, if any, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
|
|
Section
|
1403.
Exercise of Option
.
|
Securities of any series subject to repayment
at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities.
To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment”
form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing),
must be received by the Issuer at the Place of Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance
with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination
for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount
of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment,
the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series
of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Issuer.
|
|
Section
|
1404.
When Securities Presented for Repayment
Become Due and Payable
.
|
If Securities of any series providing for
repayment at the option of the Holders thereof shall have been surrendered as provided in this Article XIV and as provided by or
pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Issuer on the Repayment Date therein specified, and on and after such Repayment Date (unless
the Issuer shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount
of such Security so to be repaid shall be paid by the Issuer, together with accrued interest and/or premium, if any, to (but excluding)
the Repayment Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon,
unless the Issuer shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section
307.
If the principal amount of any Security
surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any,
thereon accrued to such Repayment Date) and any premium shall, until paid, bear interest from the Repayment Date at the rate of
interest or yield to maturity (in the case of Original Issue Discount Securities) set forth in such Security.
|
|
Section
|
1405.
Securities Repaid in Part
.
|
Upon surrender of any Security which is
to be repaid in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Issuer, a new Security or Securities of the same series, of any authorized denomination
specified by the Holder, in a principal amount equal to and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
Article
XV
GuaranteeS
|
|
Section
|
1501.
Guarantees
.
|
The payment of the principal of, and premium,
if any, and interest on the Securities of each series and all other amounts due and payable under this Indenture shall be guaranteed
(each such guarantee, a “
Guarantee
”) by such Guarantors, and on such terms and subject to such conditions, as
shall be established pursuant to Section 301 with respect to the Securities of such series. The Person(s) who shall initially be
the Guarantors of the Securities of any series may include any and all such Persons as the Issuer may determine;
provided
that prior to the initial issuance of Securities that are to be guaranteed, the parties hereto and such Person shall enter into
a supplemental indenture pursuant to Section 901(4) hereof whereby such Person shall become a Guarantor under this Indenture.
Anything in this Indenture, the Securities
or any Guarantee to the contrary notwithstanding, the obligations of each Guarantor under its Guarantees and this Indenture shall
be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities
of such Guarantor (including any other Guarantees), result in the obligations of such Guarantor under its Guarantees and this Indenture
not constituting a fraudulent transfer or conveyance under any Bankruptcy Law or any similar federal, state or foreign law affecting
the rights of creditors generally.
No Guarantee shall be valid and obligatory
for any purpose with respect to any Security until the certificate of authentication or such Security shall have been signed by
or on behalf of the Trustee.
* * *
[
Signature page follows
]
IN WITNESS WHEREOF, the parties have caused
this Indenture to be duly executed as of the date first written above.
|
MDC partners inc.,
as
Issuer
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
Title:
|
|
The Bank of New York Mellon
, as Trustee
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
Title:
|
[Signature Page to Indenture]
EXHIBIT A
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “
Supplemental Indenture
”), dated as of [__________] [__], 20[__], among __________________ (the
“
Guaranteeing Subsidiary
”), a subsidiary of MDC Partners Inc., a Canadian corporation (the “
Issuer
”),
the Issuer and
The Bank of New York Mellon
, as trustee (the “
Trustee
”).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed
and delivered to the Trustee an indenture (the “
Indenture
”), dated as of [_________], providing for the issuance
of an unlimited aggregate principal amount of debt securities (the “
Securities
”);
WHEREAS, the Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to
which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Issuer’s payment obligations under a specified
series of the Securities on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 901(4) of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders as follows:
1.
Capitalized Terms
. Capitalized
terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.
Guarantor
. The Guaranteeing Subsidiary
hereby becomes a Guarantor under the Indenture and is bound by the terms of the Indenture applicable to Guarantors of [
name
of specific series of Securities
] (the “
Specified Securities
”), including Article XV of the Indenture
and [Article][Section] [
] of the Supplemental Indenture dated as of [__________] [__], 20[
] relating to the Specified
Securities.
3.
Governing Law, etc
. THIS SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[I
nsert for non-U.S. Guaranteeing Subsidiary
:
The Guaranteeing Subsidiary has appointed [______] as its authorized agent (the “
Authorized Agent
”) upon whom
all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or
the Securities which may be instituted in any federal or state court in the Borough of Manhattan, New York City. The Guaranteeing
Subsidiary hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Guaranteeing Subsidiary agrees to take any and all action, including the filing of any and
all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Securities
remain outstanding. The Guaranteeing Subsidiary agrees that the appointment of the Authorized Agent shall be irrevocable so long
as any of the Securities remain outstanding or until the irrevocable appointment by the Guaranteeing Subsidiary of a successor
agent in the Borough of Manhattan, New York City as its authorized agent for such purpose and the acceptance of such appointment
by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process
upon the Guaranteeing Subsidiary.]
4.
Waiver of Jury Trial
. EACH OF
THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE ISSUER, THE GUARANTORS AND THE TRUSTEE ONLY ARISING OUT OF OR
RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE GUARANTEES OR THE SECURITIES.
5.
Counterparts
. The parties may
sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or portable document
format (“
PDF
”) transmission shall constitute effective execution and delivery of this Supplemental Indenture
as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
6.
Headings
. The section headings
of this Supplemental Indenture are for convenience only and shall not affect the construction hereof.
7.
Binding Obligation
. This Supplemental
Indenture has been duly executed and delivered by the Guaranteeing Subsidiary and constitutes a valid and binding agreement of
the Guaranteeing Subsidiary, enforceable against the Guaranteeing Subsidiary in accordance with its terms, except as the enforcement
thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the rights and remedies of creditors, (b) general equitable principles (whether considered in a proceeding
in equity or law) and (c) an implied covenant of good faith and fair dealing.
8.
Separability Clause
. In case
any provision in this Supplemental Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.
Ratification of Indenture; Supplemental
Indenture Part of Indenture
. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form
a part of the Indenture for all purposes, and every Holder of a Security heretofore or hereafter authenticated and delivered shall
be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
The recitals and statements herein are deemed to be those of the Issuer and the Guaranteeing Subsidiary and not those of the Trustee,
and the Trustee assumes no responsibility for their correctness.
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed, all as of the date first above written.
|
[NAME OF
GUARANTEEING
SUBSIDIARY
],
as a Guarantor
|
|
By
|
|
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
MDC PARTNERS INC., as Issuer
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
The Bank of New York Mellon
, as Trustee
|
|
|
|
By
|
|
|
|
|
|
Name:
|
|
|
Title:
|
SUBORDINATED INDENTURE
Dated as of ________
between
MDC
Partners inc.
,
as Issuer
and
The
Bank of New York Mellon,
as Trustee
CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939
|
Trust Indenture Act Section
|
Indenture Section
|
|
Section 310(a)(1)
|
Section 609
|
|
(a)(2)
|
Section 609
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(b)
|
Section 608,
Section 610
|
|
Section 311(a)
|
Section 613
|
|
(b)
|
Section 613
|
|
Section 312(a)
|
Section 701,
Section 702
|
|
(b)
|
Section 702
|
|
(c)
|
Section 702
|
|
Section 313(a)
|
Section 703
|
|
(b)
|
Section 703
|
|
(c)
|
Section 703
|
|
(d)
|
Section 703
|
|
Section 314(a)
|
Section 704
|
|
(a)(4)
|
Section 1004
|
|
(b)
|
Not Applicable
|
|
(c)(1)
|
Section 102
|
|
(c)(2)
|
Section 102
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
Not Applicable
|
|
(e)
|
Section 102
|
|
Section 315(a)
|
Section 601
|
|
(b)
|
Section 602
|
|
(c)
|
Section 601
|
|
(d)
|
Section 601
|
|
(e)
|
Section 513
|
|
Section 316(a)
|
Section 101
|
|
(a)(1)(A)
|
Section 502,
Section 511
|
|
(a)(1)(B)
|
Section 512
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
Section 508
|
|
(c)
|
Section 104
|
|
Section 317(a)(1)
|
Section 504
|
|
(a)(2)
|
Section 504
|
|
(b)
|
Section 1003
|
|
Section 318(a)
|
Section 107
|
_______________
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of this Indenture.
TABLE OF CONTENTS
|
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Page
|
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
|
|
|
Section 101.
|
Definitions
|
1
|
|
Section 102.
|
Compliance Certificates and Opinions
|
8
|
|
Section 103.
|
Form of Documents Delivered to Trustee
|
9
|
|
Section 104.
|
Acts of Holders; Record Dates
|
9
|
|
Section 105.
|
Notices, Etc., to Trustee and Issuer or Guarantors
|
11
|
|
Section 106.
|
Notice to Holders; Waiver
|
12
|
|
Section 107.
|
Conflict with Trust Indenture Act
|
13
|
|
Section 108.
|
Effect of Headings and Table of Contents
|
13
|
|
Section 109.
|
Successors and Assigns
|
13
|
|
Section 110.
|
Separability Clause
|
13
|
|
Section 111.
|
Benefits of Indenture
|
13
|
|
Section 112.
|
Governing Law; Submission to Jurisdiction
|
13
|
|
Section 113.
|
Legal Holidays
|
14
|
|
Section 114.
|
No Recourse Against Others
|
14
|
|
Section 115.
|
WAIVER OF JURY TRIAL
|
14
|
|
Section 116.
|
Counterpart Originals
|
15
|
|
Section 117.
|
Facsimile and PDF Delivery of Signature Pages
|
15
|
|
Section 118.
|
U.S.A. PATRIOT Act
|
15
|
|
Section 119.
|
No Adverse Interpretation of Other Agreements
|
15
|
|
|
|
|
|
ARTICLE II SECURITY FORMS
|
15
|
|
|
|
|
Section 201.
|
Forms Generally
|
15
|
|
Section 202.
|
Form of Legend for Global Securities
|
16
|
|
Section 203.
|
Form of Trustee’s Certificate of Authentication
|
17
|
|
|
|
|
|
ARTICLE III THE SECURITIES
|
17
|
|
|
|
|
Section 301.
|
Amount Unlimited; Issuable in Series
|
17
|
|
Section 302.
|
Denominations
|
21
|
|
Section 303.
|
Execution, Authentication, Delivery and Dating
|
21
|
|
Section 304.
|
Temporary Securities
|
22
|
|
Section 305.
|
Registration, Registration of Transfer and Exchange
|
23
|
|
Section 306.
|
Mutilated, Destroyed, Lost and Stolen Securities
|
25
|
|
Section 307.
|
Payment of Interest; Interest Rights Preserved
|
25
|
|
Section 308.
|
Persons Deemed Owners
|
27
|
|
|
|
Page
|
|
|
|
|
|
Section 309.
|
Cancellation
|
28
|
|
Section 310.
|
Computation of Interest
|
28
|
|
Section 311.
|
CUSIP Numbers
|
28
|
|
Section 312.
|
Original Issue Discount
|
29
|
|
|
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE
|
29
|
|
|
|
|
Section 401.
|
Satisfaction and Discharge of Indenture
|
29
|
|
Section 402.
|
Application of Trust Money
|
30
|
|
|
|
|
|
ARTICLE V REMEDIES
|
31
|
|
|
|
|
Section 501.
|
Events of Default
|
31
|
|
Section 502.
|
Acceleration of Maturity; Rescission and Annulment.
|
33
|
|
Section 503.
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
34
|
|
Section 504.
|
Trustee May File Proofs of Claim
|
34
|
|
Section 505.
|
Trustee May Enforce Claims Without Possession of Securities
|
35
|
|
Section 506.
|
Application of Money Collected
|
35
|
|
Section 507.
|
Limitation on Suits
|
36
|
|
Section 508.
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities
|
36
|
|
Section 509.
|
Rights and Remedies Cumulative
|
37
|
|
Section 510.
|
Delay or Omission Not Waiver
|
37
|
|
Section 511.
|
Control by Holders
|
37
|
|
Section 512.
|
Waiver of Past Defaults
|
37
|
|
Section 513.
|
Undertaking for Costs
|
38
|
|
Section 514.
|
Waiver of Usury, Stay or Extension Laws
|
38
|
|
Section 515.
|
Restoration of Rights and Remedies
|
38
|
|
|
|
|
|
ARTICLE VI THE TRUSTEE
|
38
|
|
|
|
|
Section 601.
|
Certain Duties and Responsibilities of Trustee
|
38
|
|
Section 602.
|
Notice of Defaults
|
40
|
|
Section 603.
|
Certain Rights of Trustee
|
40
|
|
Section 604.
|
Not Responsible for Recitals or Issuance of Securities
|
43
|
|
Section 605.
|
May Hold Securities
|
43
|
|
Section 606.
|
Money Held in Trust
|
43
|
|
Section 607.
|
Compensation and Reimbursement
|
43
|
|
Section 608.
|
Conflicting Interests
|
44
|
|
Section 609.
|
Corporate Trustee Required; Eligibility
|
44
|
|
Section 610.
|
Resignation and Removal; Appointment of Successor
|
45
|
|
|
|
Page
|
|
|
|
|
|
Section 611.
|
Acceptance of Appointment by Successor
|
46
|
|
Section 612.
|
Merger, Conversion, Consolidation or Succession to Business
|
47
|
|
Section 613.
|
Preferential Collection of Claims Against Issuer
|
48
|
|
Section 614.
|
Appointment of Co-Trustees
|
48
|
|
|
|
|
|
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE ISSUER AND THE GUARANTORS
|
49
|
|
|
|
|
Section 701.
|
Issuer to Furnish Trustee Names and Addresses of Holders
|
49
|
|
Section 702.
|
Preservation of Information; Communications to Holders
|
50
|
|
Section 703.
|
Reports by Trustee
|
50
|
|
Section 704.
|
Reports by the Issuer and the Guarantors
|
50
|
|
|
|
|
|
ARTICLE VIII CONSOLIDATION, MERGER AND SALE OF ASSETS
|
51
|
|
|
|
|
Section 801.
|
Issuer May Merge or Transfer Assets Only on Certain Terms
|
51
|
|
Section 802.
|
Successor Person Substituted
|
51
|
|
|
|
|
|
ARTICLE IX MODIFICATIONS AND SUPPLEMENTAL INDENTURES
|
51
|
|
|
|
|
Section 901.
|
Modifications or Supplemental Indentures Without Consent of Holders
|
51
|
|
Section 902.
|
Modifications or Supplemental Indentures With Consent of Holders
|
53
|
|
Section 903.
|
Execution of Supplemental Indentures
|
55
|
|
Section 904.
|
Effect of Supplemental Indentures
|
55
|
|
Section 905.
|
Conformity with Trust Indenture Act
|
55
|
|
Section 906.
|
Reference in Securities to Supplemental Indentures
|
55
|
|
|
|
|
|
ARTICLE X COVENANTS
|
56
|
|
|
|
|
Section 1001.
|
Payment of Principal, Premium, if any, and Interest
|
56
|
|
Section 1002.
|
Maintenance of Office or Agency
|
56
|
|
Section 1003.
|
Money for Securities Payments to Be Held in Trust
|
57
|
|
Section 1004.
|
Statement by Officers as to Default
|
58
|
|
Section 1005.
|
Waiver of Certain Covenants
|
58
|
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
58
|
|
|
|
|
Section 1101.
|
Applicability of Article
|
58
|
|
Section 1102.
|
Election to Redeem; Notice to Trustee
|
58
|
|
Section 1103.
|
Selection by Trustee of Securities to Be Redeemed
|
59
|
|
Section 1104.
|
Notice of Redemption
|
60
|
|
Section 1105.
|
Deposit of Redemption Price
|
61
|
|
|
|
Page
|
|
|
|
|
|
Section 1106.
|
Securities Payable on Redemption Date
|
61
|
|
Section 1107.
|
Securities Redeemed in Part
|
62
|
|
|
|
|
|
ARTICLE XII SINKING FUNDS
|
62
|
|
|
|
|
Section 1201.
|
Applicability of Article
|
62
|
|
Section 1202.
|
Satisfaction of Sinking Fund Payments with Securities
|
62
|
|
Section 1203.
|
Redemption of Securities for Sinking Fund
|
63
|
|
|
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
63
|
|
|
|
|
Section 1301.
|
Issuer’s or Guarantors’ Option to Effect Defeasance or Covenant Defeasance
|
63
|
|
Section 1302.
|
Defeasance and Discharge
|
63
|
|
Section 1303.
|
Covenant Defeasance
|
64
|
|
Section 1304.
|
Conditions to Defeasance or Covenant Defeasance
|
64
|
|
Section 1305.
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
66
|
|
Section 1306.
|
Reinstatement
|
67
|
|
|
|
|
|
ARTICLE XIV REPAYMENT AT THE OPTION OF HOLDERS
|
67
|
|
|
|
|
Section 1401.
|
Applicability of Article
|
67
|
|
Section 1402.
|
Repayment of Securities
|
67
|
|
Section 1403.
|
Exercise of Option
|
68
|
|
Section 1404.
|
When Securities Presented for Repayment Become Due and Payable
|
68
|
|
Section 1405.
|
Securities Repaid in Part
|
69
|
|
|
|
|
|
ARTICLE XV SUBORDINATION
|
69
|
|
|
|
|
Section 1501.
|
Agreement to Subordinate
|
69
|
|
Section 1502.
|
Distribution on Dissolution, Liquidation and Reorganization
|
69
|
|
Section 1503.
|
No Payment on Securities in Event of Default on Senior Indebtedness
|
71
|
|
Section 1504.
|
Payments on Securities Permitted
|
71
|
|
Section 1505.
|
Trustee to Effectuate Subordination
|
71
|
|
Section 1506.
|
Notices to Trustee
|
71
|
|
Section 1507.
|
Trustee as Holder of Senior Indebtedness
|
72
|
|
Section 1508.
|
Modification of Terms of Senior Indebtedness
|
72
|
|
Section 1509.
|
Reliance on Judicial Order or Certificate of Liquidation Agent
|
72
|
|
Section 1510.
|
Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Senior Indebtedness
|
73
|
|
Section 1511.
|
Trustee Not Fiduciary for Holders of Senior Indebtedness
|
73
|
|
Section 1512.
|
Defeasance
|
73
|
|
|
|
Page
|
|
|
|
|
|
Section 1513.
|
Applicability of Article
|
73
|
|
|
|
|
|
ARTICLE XVI SUBORDINATED GUARANTEES
|
74
|
|
|
|
|
Section 1601.
|
Subordinated Guarantees.
|
74
|
|
|
EXHIBIT A
|
Form of Supplemental Indenture to be Delivered by Guarantors
|
INDENTURE, dated as of ________, between
mdc partners inc.
, a corporation continued under the laws of Canada (the “
Issuer
”),
and The Bank of New York Mellon, a New York banking corporation (together with any successor appointed pursuant to the terms of
this Indenture, the “
Trustee
”).
RECITALS
The Issuer has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of its senior subordinated and subordinated debt securities
(herein called the “
Securities
”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture
a valid agreement of the Issuer in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the premises
and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
Article
I
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 I have the meanings assigned to them in this Article I and include the plural as well as
the singular;
|
|
|
(2)
|
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
|
|
|
(3)
|
unless the context otherwise requires, any reference to an “Article,” a “Section,” a “Schedule”
or an “Exhibit” refers to an Article, a Section, a Schedule or an Exhibit, as the case may be, of or to this Indenture;
|
|
|
(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;
|
|
|
(5)
|
“including” means including without limitation;
|
|
|
(6)
|
when used with respect to any Security, the words “convert,” “converted” and “conversion”
are intended to refer to the right of the Holder, the Issuer or the Guarantors, as the case may be, to convert or exchange such
Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such
Security as contemplated by Section 301, and these words are not intended to refer to any right of the Holder, the Issuer or the
Guarantors, as the case may be, to exchange such Security for other Securities of the same series and like tenor pursuant to Section
304, Section 305, Section 306, Section 906 or Section 1107 or another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such
Security as contemplated in Section 301; and
|
|
|
(7)
|
unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other
modifications to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited
by the terms of this Indenture.
|
“
Act
,” when used with
respect to any Holder, has the meaning specified in Section 104.
“
Affiliate
” means, with
respect to any specified Person, 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.
“
Applicable Procedures
”
means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that
are applicable to such matter at such time.
“
Bankruptcy Law
” has
the meaning specified in Section 501.
“
Board of Directors
”
means the board of directors or managers, as applicable, of the Issuer or any of the Guarantors, as the case may be, or any duly
authorized committee of that Board of Directors or any director or directors and/or officer or officers to whom that Board of Directors
or committee shall have duly delegated its authority.
“
Board Resolution
” means
a copy of one or more resolutions certified by the Secretary or an Assistant Secretary, or persons serving similar functions, of
the Issuer or any of the Guarantors, as the case may be, 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.
“
Business Day
” means,
when used with respect to any Place of Payment, unless otherwise specified as contemplated by Section 301, any day, other than
a Saturday or Sunday, which is not a day on which banking institutions are authorized or obligated by law, regulation or executive
order to close in that Place of Payment.
“
Commission
” means the
U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“
Corporate Trust Office
”
means the principal office of the Trustee at which, at any particular time, its corporate trust business shall be conducted, which
office is located as of the date of this Indenture at 101 Barclay Street, 7W, New York, New York 10286, Attention: Corporate Trust
Division – Corporate Finance Unit, or at such other address as the Trustee may designate from time to time by notice to the
Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Issuer).
“
Covenant Defeasance
”
has the meaning specified in Section 1303.
“
Custodian
” has the meaning
specified in Section 501.
“
Default
” means any event
which is, or after notice or passage of time or both would be, an Event of Default.
“
Defaulted Interest
”
has the meaning specified in Section 307.
“
Defeasance
” has the
meaning specified in Section 1302.
“
Depositary
” means, with
respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“
DTC
” means The Depository
Trust Company, its nominees and their respective successors and assigns.
“
Event of Default
” has
the meaning specified in Section 501.
“
Exchange Act
” means
the U.S. Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“
Expiration Date
” has
the meaning specified in Section 104.
“
GAAP
” means generally
accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States,
which are in effect on the date of this Indenture.
“
Global Security
” means
a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 202 (or such legend
as may be specified as contemplated by Section 301 for such Securities).
“
Guarantee
” has the meaning
specified in Section 1601.
“
Guarantors
” means any
Person who shall have become a Guarantor under this Indenture pursuant to Section 301 or Section 901, in each case unless and until
a successor Person shall have been substituted for such Guarantor pursuant to the applicable provisions of this Indenture established
pursuant to Section 301 or Section 901, at which time references to such Guarantor shall mean such successor person,
provided
that the term “Guarantor,” when used, with respect to any Security or the Securities of any series, means the Persons
who shall from time to time be the guarantors of such Security or the Securities of such series, respectively, as contemplated
by Article XVI.
“
Guarantor Request
” or
“
Guarantor Order
” means a written request or order signed in the name of a Guarantor by any Officer of any Guarantor
(or any Person designated in writing as authorized to execute and deliver Guarantor Requests and Guarantor Orders), and delivered
to the Trustee.
“
Holder
” means a Person
in whose name a Security is registered in the Security Register.
“
Indenture
” means this
Indenture as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established
as contemplated by Section 301.
“
interest
” means, when
used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable
after Maturity.
“
Interest Payment Date
”
means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“
Internal Revenue Code
”
means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“
Issuer
” means the Person
named as the “Issuer” in the first paragraph of this Indenture until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
“
Issuer Request
” or “
Issuer
Order
” means a written request or order signed in the name of the Issuer by an Officer of the Issuer (or any Person designated
in writing as authorized to execute and deliver Issuer Requests and Issuer Orders), and delivered to the Trustee.
“
Maturity
” means, when
used with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
“
Notice of Default
” means
a written notice of the kind specified in Section 501.
“
Officer
” means the Chairman
of the Board, any Vice Chairman, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer,
the Chief Financial Officer, the Chief Accounting Officer, the Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Issuer or any of the Guarantors, as the case may be.
“
Officer’s Certificate
”
means a certificate signed by an Officer of the Issuer or any of the Guarantors, as the case may be, and delivered to the Trustee.
An Officer’s Certificate of the Issuer may be combined with an Officer’s Certificate of any of the Guarantors if signed
by an Officer of the Issuer and such Guarantor.
“
Opinion of Counsel
”
means a written opinion of counsel (who may be counsel for the Issuer or for any of the Guarantors, or for both). The counsel may
be an employee of the Issuer or any of the Guarantors. Opinions of Counsel required to be delivered under this Indenture may have
qualifications customary for opinions of the type required and counsel delivering such Opinions of Counsel may rely as to factual
matters on certificates of the Issuer, any of the Guarantors or governmental or other officials customary for opinions of the type
required.
“
Original Issue Discount Security
”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
“
Outstanding
” means,
when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
|
|
(1)
|
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
|
|
|
(2)
|
Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as
its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
|
|
|
(3)
|
Securities as to which Defeasance has been effected pursuant to Section 1302;
|
|
|
(4)
|
Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide
purchaser in whose hands such Securities
are valid obligations of the Issuer; and
|
|
|
(5)
|
Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made
available), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities
as contemplated in Section 301;
|
provided
,
however
, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as
of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed
to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a
Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided
in such clause), and (D) Securities owned by the Issuer, any of the Guarantors or any other obligor upon the Securities or any
Affiliate of the Issuer, any of the Guarantors or such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible Officer actually knows to be so owned shall be so
disregarded. 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 Securities and that the pledgee is
not the Issuer, any of the Guarantors or any other obligor upon the Securities or any Affiliate of the Issuer, any of the Guarantors
or such other obligor.
“
Paying Agent
” means
any Person authorized by the Issuer to pay the principal of or premium, if any, or interest on any Securities on behalf of the
Issuer or any of the Guarantors.
“
Person
” means any individual,
corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof or any other entity.
“
Place of Payment
” means,
subject to Section 1002, when used with respect to the Securities of any series, the place or places where the principal of and
premium, if any, and interest on the Securities of such series are payable as specified as contemplated by Section 301.
“
Predecessor Security
”
means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
“
Redemption Date
” means,
when used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
“
Redemption Price
” means,
when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“
Regular Record Date
”
means, for the interest payable on any Interest Payment Date on the Securities of any series, the date specified for that purpose
as contemplated by Section 301.
“
Repayment Date
” means,
when used with respect to a Security to be repaid at the option of a Holder, the date fixed for such repayment by or pursuant to
this Indenture.
“
Responsible Officer
”
means, when used with respect to the Trustee, any officer assigned to the Corporate Trust Division - Corporate Finance Unit (or
any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility
for the administration of this Indenture, and for purposes of Section 601(3)(B) and the second sentence of Section 602 shall also
include any officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
“
Securities
” has the
meaning specified in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“
Securities Act
” means
the U.S. Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“
Security Register
” and
“
Security Registrar
” have the respective meanings specified in Section 305.
“Senior Indebtedness” means
the principal of (and premium, if any) and unpaid interest and all other amounts owed and obligations in respect of (i) indebtedness
of the Issuer or any Guarantor, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed,
for money borrowed or owed (other than the indebtedness evidenced by the Securities of any series) and (ii) renewals, extensions,
modifications and refundings of any such indebtedness, except for (x) the Securities, (y) indebtedness or other obligation that
by its terms is equal with or subordinate in right of payment to the Securities or any related Guarantee and (z) any indebtedness
or other obligation which is equal with or subordinate in right of payment to the Securities and any related Guarantee.
“
Special Record Date
”
means, for the payment of any Defaulted Interest, a date fixed by the Trustee pursuant to Section 307.
“
Stated Maturity
” means,
when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“
Subsidiary
” means with
respect to any Person, another Person consolidated as a subsidiary on the consolidated financial statements of such Person in accordance
with GAAP (it being understood that making a Person part of a discontinued operation does not cause it to cease to be consolidated
as a subsidiary for purposes of this definition).
“
Trust Indenture Act
”
means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed;
provided
,
however
,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“
Trustee
” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of such series.
“
U.S. Government Obligation
”
means (1) any security which is (a) a direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (b) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in either case (a) or (b), is not callable or redeemable
at the option of the issuer thereof, and (2) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (1) above and held
by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of
or interest on any U.S. Government Obligation which is so specified and held;
provided
that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
“
Vice President
” means,
when used with respect to the Issuer, any of the Guarantors or the Trustee, any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president.”
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|
Section
|
102.
Compliance
Certificates and Opinions
.
|
Upon any application or request by the Issuer
or any of the Guarantors to the Trustee to take any action under any provision of this Indenture, the Issuer or the Guarantors,
or both, as the case may be, shall furnish to the Trustee, if requested by the Trustee, an Officer’s 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 (except for certificates provided for in Section 1004)
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 Issuer or any of the Guarantors, or both, as the case may be, 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 such Officer’s 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 Issuer or any of the Guarantors, or both,
as the case may be, stating that the information with respect to such factual matters is in the possession of the Issuer or any
of the Guarantors, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion 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.
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|
Section
|
104.
Acts of Holders;
Record Dates
.
|
Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Guarantors. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
”
of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and, subject to Section 601, conclusive in favor of the Trustee,
the Issuer, and the Guarantors, if made in the manner provided in this Section 104.
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 reasonably deems sufficient. Where such
execution is by a Person acting in a capacity other than such Person’s individual capacity, such certificate or affidavit
shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved
by the Security Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the Trustee, the Issuer or the Guarantors in reliance thereon, whether or not
notation of such action is made upon such Security.
Each of the Issuer and the Guarantors may
set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give,
make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series;
provided
that neither the Issuer nor the Guarantors
may set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuer or
the Guarantors from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Issuer or the Guarantors, as the case may be, at its own expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record
date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 511, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such
action is taken.
With respect to any record date set pursuant
to this Section 104, the party hereto which sets such record dates may designate any day as the “
Expiration Date
”
and from time to time may change the Expiration Date to any earlier or later day;
provided
that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder
entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part
of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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Section
|
105.
Notices, Etc.,
to Trustee and Issuer or Guarantors
.
|
Any request, demand,
authorization, direction, notice, consent, waiver or 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 Issuer or by the Guarantors shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing and delivered in person, by facsimile at (212) 815-5704, mailed by first-class postage prepaid, to
or with the Trustee at its Corporate Trust Office at the location specified in Section 101; or
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(2)
|
the Issuer or the Guarantors by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and delivered in person, by facsimile or mailed, first-class postage prepaid (or, in the
case of Securities held in book-entry form, by electronic transmission), to the Issuer or the Guarantors addressed to the attention
of the Secretary of the Issuer or any of the Guarantors at the address of the Issuer’s or any of the Guarantors’ principal
office specified in writing to the Trustee by the Issuer or any such Guarantor and, until further notice, at, 745 Fifth Avenue,
19
th
Floor, New York, NY 10151, facsimile number (212) 937-4365, Attention: General Counsel.
|
If a notice or communication is mailed or
delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it,
except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt by the
Trustee at its Corporate Trust Office.
The Trustee shall have the right, but shall
not be required, to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar unsecured
electronic methods by persons believed by the Trustee to be authorized to give instructions and directions on behalf of the Issuer.
The Trustee shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is,
in fact, a person authorized to give instructions or directions on behalf of the Issuer; and the Trustee shall have no liability
for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of such reliance upon or compliance
with such instructions or directions. The Issuer 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
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Section
|
106.
Notice to Holders;
Waiver
.
|
Where this Indenture provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the
Security Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. 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.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice
of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security
(or its designee), pursuant to the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier
than the earliest date, if any, prescribed for the giving of such notice.
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Section
|
107.
Conflict with
Trust Indenture Act
.
|
If any provision of this Indenture limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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|
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 Issuer and the Guarantors shall bind their respective successors and assigns, whether so expressed or not. All agreements
of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
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|
Section
|
110.
Separability
Clause
.
|
In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
|
|
Section
|
111.
Benefits of
Indenture
.
|
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
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|
Section
|
112.
Governing Law;
Submission to Jurisdiction
.
|
This Indenture, the Securities and the Guarantees,
if any, shall be governed by, and construed in accordance with, the law of the State of New York.
Each of the Issuer, the Guarantors and each
Holder by its acceptance of a Security hereby:
|
|
(1)
|
agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Guarantees)
or the Securities, as the case may be, may be instituted in any federal or state court sitting in Borough of Manhattan, New York
City,
|
|
|
(2)
|
waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court has been brought
in an inconvenient forum,
|
|
|
(3)
|
irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding,
|
|
|
(4)
|
agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may
be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and
|
|
|
(5)
|
agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process
on it in any such suit, action or proceeding.
|
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|
Section
|
113.
Legal Holidays
.
|
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert such Holder’s
Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this
Section 113)) payment of principal and premium, if any, or interest, or the Redemption Price or conversion of such Security, need
not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such
conversion date. In the case, however, of Securities of a series bearing interest at a floating rate based on the London interbank
offered rate (LIBOR), if any Interest Payment Date (other than the Redemption Date or Stated Maturity) would otherwise be a date
that is not a Business Day, then the Interest Payment Date shall be postponed to the following date which is a Business Day, unless
that Business Day falls in the next succeeding calendar month, in which case the Interest Payment Date will be the immediately
preceding Business Day. No interest shall accrue for the period from and after any such Interest Payment Date, Redemption Date,
Stated Maturity or conversion date, as the case may be, to the date of such payment.
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Section
|
114.
No Recourse
Against Others
.
|
A director, officer, employee or stockholder
as such of the Issuer or any of the Guarantors shall not have any liability for any obligations of the Issuer or any such Guarantor
under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. By accepting a Security, each Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Securities.
|
|
Section
|
115.
WAIVER OF JURY
TRIAL
.
|
EACH OF THE ISSUER, THE GUARANTORS AND THE
TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE ISSUER, THE GUARANTORS AND THE TRUSTEE
ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES OR THE SECURITIES.
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Section
|
116.
Counterpart
Originals
.
|
The parties hereto may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
|
|
Section
|
117.
Facsimile and
PDF Delivery of Signature Pages
.
|
The exchange of copies of this Indenture
and of signature pages by facsimile or portable document format (“
PDF
”) transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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|
Section
|
118.
U.S.A. PATRIOT
Act
.
|
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. PATRIOT Act.
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Section
|
119.
No Adverse
Interpretation of Other Agreements
.
|
This Indenture may not be used to interpret
another indenture or loan or debt agreement of the Issuer or any Subsidiary of the Issuer, and no such indenture or loan or debt
agreement may be used to interpret the Indenture.
Article
II
SECURITY FORMS
|
|
Section
|
201.
Forms Generally
.
|
The Securities of each series and the Guarantees
thereof contemplated in Article XVI shall be in substantially such form or forms as shall be established by or pursuant to a Board
Resolution of the Issuer or any of the Guarantors, as the case may be, or, subject to Section 303, set forth in, or determined
in the manner provided in, an Officer’s Certificate pursuant to a Board Resolution of the Issuer or any of the Guarantors,
as the case may be, 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 applicable tax laws or
the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officer executing
such Securities or Guarantees thereof, as evidenced by their execution thereof. If the form of Securities of any series or Guarantees
thereof 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 Issuer or any of the Guarantors, as applicable, and delivered to the
Trustee at or prior to the delivery of the Issuer Order contemplated by Section 303 for the authentication and delivery of such
Securities. If all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued
at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Security of such series,
but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing
such Securities or Guarantees, as evidenced by their execution of such Securities.
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|
Section
|
202.
Form of Legend
for Global Securities
.
|
Unless otherwise specified as contemplated
by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“
DTC
”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.
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Section
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203.
Form of Trustee’s
Certificate of Authentication
.
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The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
Dated:
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The Bank of New York Mellon
, as Trustee
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By:
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Authorized Signatory
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Article
III
THE SECURITIES
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Section
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301.
Amount Unlimited;
Issuable in Series
.
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The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to (a) a Board Resolution of the Issuer or pursuant to authority granted by a
Board Resolution of the Issuer and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s
Certificate of the Issuer, or (b) one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
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(1)
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the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
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(2)
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the price or prices at which debt securities of the series will be issued;
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(3)
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whether the debt securities of the series will rank as senior subordinated securities or subordinated securities or any combination
thereof and the terms of such subordination;
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(4)
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the limit, if any, on the aggregate principal amount of the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304, Section 305, Section 306, Section 906 or Section 1107 and except
for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
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(5)
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the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
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(6)
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the date or dates on which the principal of any Securities of the series is payable or the method used to determine or extend
those dates;
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(7)
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the rate or rates, which may be fixed or variable, at which any Securities of the series shall bear interest, if any, the date
or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable, the
method or methods used to determine any variable rates and the Regular Record Date for any such interest payable on any Interest
Payment Date;
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(8)
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the basis used to calculate interest, if any, on the debt securities of the series if other than a 360-day year of twelve 30-day
months;
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(9)
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the place or places where the principal of and premium, if any, and interest on any Securities of the series shall be payable
and the manner in which any payment may be made;
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(10)
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the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of
the series may be redeemed, in whole or in part, at the option of the Issuer and, if other than by a Board Resolution, the manner
in which any election by the Issuer to redeem the Securities shall be evidenced;
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(11)
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the obligation or the right, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking
fund or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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(12)
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if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any
Securities of the series shall be issuable;
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(13)
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if the amount of principal of or premium, if any, or interest on any Securities of the series may be determined with reference
to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts shall be determined;
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(14)
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if other than the currency of the United States of America, the currency, currencies or currency units in which the principal
of or premium, if any, or interest on any Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding”
in Section 101;
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(15)
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if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the
Issuer or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are
stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such
Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
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(16)
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if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
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(17)
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if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one
or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of
any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
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(18)
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if other than by a Board Resolution, the manner in which any election by the Issuer or any of the Guarantors to defease any
Securities of the series pursuant to Section 1302 or Section 1303 shall be evidenced; whether any Securities of the series other
than Securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to Section 1302 or Section 1303;
or, in the case of Securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the Securities
of the series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or Section 1303 or both such Sections;
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(19)
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if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or
in lieu of those set forth in clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions
governing exchanges or transfers of such Global Security;
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(20)
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any addition to, deletion from or change in the Events of Default which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
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(21)
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any addition to, deletion from or change in the covenants set forth in Article VIII and Article X which applies to Securities
of the series;
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(22)
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if the Securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property
of any Person (including the Issuer or any of the Guarantors), the terms and conditions upon which such Securities will be so convertible
or exchangeable;
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(23)
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whether any debt securities of the series will be issued in temporary or permanent global form and, if so, the identity of
the depositary for the global debt securities if other than DTC;
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(24)
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whether the Securities of the series will be guaranteed by any Person or Persons (including any Guarantors) and, if so, the
identity of such Person or Persons, the terms and conditions upon which such Securities shall be guaranteed and, if applicable,
the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
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(25)
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whether the Securities of the series or guarantees will be secured by any collateral and, if so, the terms and conditions upon
which such Securities or guarantees shall be secured and, if applicable, upon which such liens may be subordinated to other liens
securing other indebtedness of the Issuer or any guarantor;
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(26)
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents;
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(27)
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any listing of the Securities on any securities exchange; and
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(28)
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any other terms of the Securities of such series and the Guarantees thereof (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901 and Section 902).
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There shall be established in or pursuant
to a Board Resolution of any of the Guarantors and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer’s Certificate of such Guarantor, or established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, the provisions of the Guarantees with respect to the Securities of such series, if such provisions
differ from those set forth in Section 1601.
All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution
of the Issuer referred to above or pursuant to authority granted by one or more Board Resolutions of the Issuer and, subject to
Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate of the Issuer referred to above
or in any such indenture supplemental hereto.
All Securities of any one series need not
be issued at one time and, unless otherwise provided in or pursuant to the Board Resolution of the Issuer referred to above and,
subject to Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate of the Issuer referred
to above or pursuant to authority granted by one or more Board Resolutions of the Issuer or in any such indenture supplemental
hereto with respect to a series of Securities, additional Securities of a series may be issued, at the option of the Issuer, without
the consent of any Holder, at any time and from time to time.
If any of the terms of the series 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 Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate
setting forth the terms of the series.
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Section
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302.
Denominations
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The Securities of each series shall be issuable
only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In
the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
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Section
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303.
Execution,
Authentication, Delivery and Dating
.
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The Securities shall be executed on behalf
of the Issuer by an Officer of the Issuer. The signature on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after
the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee
for authentication, together with a Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have
been established by or pursuant to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions
as permitted by Section 201 and Section 301, in authenticating such Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and, subject to Section 601, shall be
fully protected in relying upon, at the option of the Issuer, either (i) an Opinion of Counsel or (ii) a letter from legal counsel
addressed to the Trustee permitting it to rely on an Opinion of Counsel,
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(1)
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if the form of such Securities has been established by or pursuant to a Board Resolution or pursuant to authority granted by
one or more Board Resolutions as permitted by Section 201, that such form has been established in conformity with the provisions
of this Indenture;
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(2)
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if the terms of such Securities have been established by or pursuant to a Board Resolution or pursuant to authority granted
by one or more Board Resolutions as permitted by Section 301, that such terms have been established in conformity with the provisions
of this Indenture; and
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(3)
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that such Securities, when authenticated by the Trustee and issued and delivered by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer enforceable
in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. Such Opinion of Counsel may
also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent such counsel deems proper,
upon certificates of officers of the Issuer and its subsidiaries, as applicable, and certificates of public officials.
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If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will
materially adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section
301 and of the preceding paragraph of this Section 303, if all Securities of a series are not to be originally issued at one time,
including in the event that the aggregate principal amount of a series of Outstanding Securities is increased as contemplated by
Section 301, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or
the Issuer Order and Opinion of Counsel otherwise required pursuant to this Section 303 at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of
its authentication.
No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and
the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits
of this Indenture.
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Section
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304.
Temporary Securities
.
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Pending the preparation of definitive Securities
of any series, the Issuer may execute, and, upon Issuer Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the Officer or Officers executing such Securities may determine, as evidenced
by their execution thereof.
If temporary Securities of any series are
issued, the Issuer will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment
for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series,
the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
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Section
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305.
Registration,
Registration of Transfer and Exchange
.
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The Issuer shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the
Issuer in a Place of Payment being herein sometimes collectively referred to as the “
Security Register
”) in
which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed “
Security Registrar
” for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer
of any Security of a series at the office or agency of the Issuer in a Place of Payment for such series, the Issuer shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and principal amount.
At the option of the Holder, Securities
of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and principal
amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities, which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration
of transfer or exchange of Securities shall be the valid obligations of the Issuer and each of the Guarantors, respectively, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities and the Guarantees, respectively, surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder
thereof or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, Section 906 or Section 1107 not involving any transfer.
If the Securities of any series (or of any
series and specified tenor) are to be redeemed in part, the Issuer shall not be required (A) to issue, register the transfer of
or exchange any Securities of such series (or of such series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Neither the Trustee nor the Securities Registrar
shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the
Securities Act, applicable state securities laws or any substantially similar federal, state or local law.
The provisions of clauses (1), (2), (3)
and (4) of this paragraph shall apply only to Global Securities:
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(1)
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Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.
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(2)
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Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified
as contemplated by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the Issuer that it is unwilling or unable or no longer permitted
under applicable law to continue as Depositary for such Global Security or if the Depositary ceases to be eligible under this Indenture
to act as Depositary and the Issuer does not appoint a successor Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and a request has been made for such exchange or (C) the Issuer
so directs the Trustee by a Issuer Order.
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(3)
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Subject to clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 301,
any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for
a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
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(4)
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Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section 305, Section 304, Section 306, Section 906 or Section 1107 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a nominee thereof.
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Section
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306.
Mutilated,
Destroyed, Lost and Stolen Securities
.
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If any mutilated Security is surrendered
to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer
and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a
bona fide
purchaser, the Issuer shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Issuer or any of the Guarantors in its or their discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under
this Section 306, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of counsel to the Issuer and the fees and
expenses of the Trustee and its counsel) connected therewith.
Every new Security of any series issued
pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security and shall constitute an original additional
contractual obligation of the Issuer whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of such series duly issued hereunder.
The provisions of this Section 306 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
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Section
|
307.
Payment of
Interest; Interest Rights Preserved
.
|
Except as otherwise provided as contemplated
by Section 301 with respect to any series of Securities, interest on any 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 Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any 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 Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Issuer or any of the Guarantors, at its election in each case,
as provided in clause (1) or (2) below:
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(1)
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The Issuer or the Guarantors may elect to make payment of any Defaulted Interest payable on Securities of a series to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer or
the Guarantors shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the Issuer or the Guarantors, as the case may be, shall
deposit with the Trustee an amount of money 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 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
notice of the proposed payment. The Trustee shall promptly notify the Issuer and the Guarantors of such Special Record Date and,
in the name and at the expense of the Issuer or the Guarantors, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section
106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
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(2)
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The Issuer or any of the Guarantors may make payment of any Defaulted Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the Issuer or the Guarantors to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this
Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity
is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for
payment) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be
payable. Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this
paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
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Section
|
308.
Persons Deemed
Owners
.
|
Prior to due presentment of a Security for
registration of transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and, subject to Section 307, any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Issuer, the Guarantors, the Trustee nor any agent of the Issuer, the Guarantors
or the Trustee shall be affected by notice to the contrary.
None of the Trustee, the Paying Agent or
the Security Registrar shall have any responsibility or obligation to any beneficial owner in a Global Security, an agent member
or participant
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any agent
member or participant, with respect to any ownership interest in the Securities or with respect to the delivery to any agent member
or participant, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Securities and this Indenture shall be given or made only to or upon the order
of the registered holders (which shall be the Depositary or its nominee in the case of the Global Security). The rights of beneficial
owners in the Global Security shall be exercised only through the Depositary subject to the applicable procedures. The Trustee,
the Paying Agent and the Security Registrar shall be entitled to rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any beneficial owners. The Trustee, the Paying Agent
and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered holder
of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal,
premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or
holder of a beneficial ownership interest in such Global Security) as the sole holder of such Global Security and shall have no
obligations to the beneficial owners thereof. None of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility
or liability for any acts or omissions of the Depositary with respect to such Global Security, for the records of any such depositary,
including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between
the Depositary and any Agent Member or between or among the Depositary, any such Agent Member and/or any holder or owner of a beneficial
interest in such Global Security, or for any transfers of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect
to any Global Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with
respect to such Global Security or shall impair, as between such Depositary and owners of beneficial interests in such Global Security,
the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such
Global Security.
|
|
Section
|
309.
Cancellation
.
|
All Securities surrendered for payment,
redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer or the Guarantors
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the
Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of in accordance with its customary procedures. The Trustee shall provide the Issuer a list
of all Securities that have been cancelled from time to time as requested in writing by the Issuer.
|
|
Section
|
310.
Computation
of Interest
.
|
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
|
|
Section
|
311.
CUSIP Numbers
.
|
The Issuer in issuing any series of the
Securities may use “CUSIP”, “ISIN” or other similar numbers and/or other similar numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption with respect to
such series;
provided
that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuer shall promptly inform the Trustee, in writing, of any change in the “CUSIP”,
“ISIN” or other similar numbers.
|
|
Section
|
312.
Original Issue
Discount
.
|
If any of the Securities is an Original
Issue Discount Security, the Issuer shall file with the Trustee promptly at the end of each calendar year (1) a written notice
specifying the amount of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original
Issue Discount Securities as of the end of such year and (2) such other specific information relating to such original issue discount
as may then be relevant under the Internal Revenue Code.
Article
IV
SATISFACTION AND DISCHARGE
|
|
Section
|
401.
Satisfaction
and Discharge of Indenture
.
|
This Indenture shall, upon Issuer Request,
cease to be of further effect with respect to any series of Securities specified in such Issuer Request (except as to any surviving
rights of registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at
the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such
series, when:
|
|
(A)
|
all outstanding Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been
mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantors, as the case
may be, and thereafter repaid to the Issuer or the Guarantors, as the case may be, or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
|
|
|
(B)
|
all such Securities of such series 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 of the date of deposit, 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 Issuer and the Guarantors, jointly and severally,
|
and the Issuer or the Guarantors, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities,
money in an amount sufficient without reinvestment
,
to pay
and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and premium, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
|
|
(2)
|
the Issuer or, if applicable, the Guarantors, have paid or caused to be paid all other sums payable hereunder by the Issuer
or the Guarantors; and
|
|
|
(3)
|
the Issuer or, if applicable, the Guarantors have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
|
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Issuer to the Trustee under Section 607 and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
|
|
Section
|
402.
Application
of Trust Money
.
|
Subject to the provisions of the last paragraph
of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the applicable series of Securities and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer 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 has been deposited with the Trustee. All money deposited
with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted
into other property shall be returned to the Issuer upon Issuer Request or, if applicable, to the Guarantors upon Guarantor Request,
to the extent originally deposited by such party. The Issuer or the Guarantors, as the case may be, may direct by an Issuer Order
or Guarantor Order, as applicable, the investment of any money deposited with the Trustee pursuant to Section 401, without distinction
between principal and income, in (1) United States Treasury securities with a maturity of one year or less or (2) a money market
fund that invests solely in short-term United States Treasury securities (including money market funds for which the Trustee or
an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian,
notwithstanding that (a) the Trustee charges and collects fees and expenses from such funds for services rendered and (b) the Trustee
charges and collects fees and expenses for services rendered pursuant to this Indenture at any time) and from time to time the
Issuer or the Guarantors, as the case may be, may direct the reinvestment of all or a portion of such money in other securities
or funds meeting the criteria specified in clause (1) or (2) of this Section 402.
Article
V
REMEDIES
|
|
Section
|
501.
Events of Default
.
|
Except as may be otherwise provided pursuant
to Section 301 for Securities of any series, an “
Event of Default
” means, whenever used herein or in a Security
issued hereunder with respect to Securities of any series, any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
|
|
(1)
|
the Issuer defaults in the payment of any installment of interest on any Security of such series for 30 days after becoming
due (whether or not prohibited by the subordination provisions of this Indenture);
|
|
|
(2)
|
the Issuer defaults in the payment of the principal of or premium, if any, on any Security of such series when the same becomes
due and payable at its Stated Maturity, upon redemption, upon declaration or otherwise (whether or not prohibited by the subordination
provisions of this Indenture);
|
|
|
(3)
|
the Issuer defaults in the delivery when due of any securities, cash or other property (including, without limitation, any
common shares) when required to be delivered upon conversion of any convertible debt security of such series or upon the exchange
of any debt security of such series which is exchangeable for common shares or other securities or property (other than an exchange
of debt securities of such series for other debt securities of the same series);
|
|
|
(4)
|
the Issuer defaults in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series;
|
|
|
(5)
|
the Issuer or, if applicable, the Guarantors default in the performance of, or breaches, any of their covenants and agreements
in respect of any Security of such series contained in this Indenture or in the Securities of such series (other than those referred
to in (1), (2), (3) or (4) above), and such default or breach continues for a period of 60 days (except that, in the case of a
default in the performance of or breach of any reporting covenant otherwise provided pursuant to Section 301 for Securities
of any series, such period shall be 120 days) after the notice specified below;
|
|
|
(6)
|
if the Securities of such series are guaranteed Securities, the guarantee of the Securities of such series by any Guarantor
shall for any reason cease to be, or shall for any reason be asserted in writing by such Guarantor or the Issuer not to be, in
full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by this Indenture;
|
|
|
(7)
|
the Issuer or the Guarantors, as the case may be, pursuant to or within the meaning of the Bankruptcy Law (as defined below):
|
(A)
commences a voluntary case or proceeding;
(B)
consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C)
consents to the appointment of a Custodian (as defined below) of it or for all or substantially all of its property;
(D)
makes a general assignment for the benefit of its creditors;
(E)
files a petition in bankruptcy or answer or consent seeking reorganization or relief;
(F)
consents to the filing of such petition or the appointment of or taking possession by a Custodian; or
(G)
takes any comparable action under any foreign laws relating to insolvency;
|
|
(8)
|
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
(A)
is for relief against the Issuer or, if applicable, the Guarantors in an involuntary case, or adjudicates the Issuer or
the Guarantors insolvent or bankrupt;
(B)
appoints a Custodian of the Issuer or, if applicable, the Guarantors or for all or substantially all of the property of
the Issuer or the Guarantors; or
(C)
orders the winding-up or liquidation of the Issuer or, if applicable, the Guarantors (or any similar relief is granted under
any foreign laws),
and the order or decree remains unstayed and in effect
for 60 days; or
|
|
(9)
|
any other Event of Default provided by Section 301 with respect to Securities of such series occurs.
|
The term “
Bankruptcy Law
”
means Title 11, United States Code, or any similar U.S. federal or state, Canadian, provincial or other foreign law for the relief
of debtors. The term “
Custodian
” means any custodian, receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
A Default with respect to Securities of
any series under clause (6) of this Section 501 shall not be an Event of Default until the Trustee (by written notice to the Issuer
and the Guarantors) or the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series (by
written notice to the Issuer, the Guarantors and the Trustee) gives notice of the Default and the Issuer or the Guarantors does
not cure such Default within the time specified in clause (6) after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a “
Notice of Default
.”
|
|
Section
|
502.
Acceleration
of Maturity; Rescission and Annulment
.
|
If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified in Section 501(7) or Section 501(8)) occurs and
is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series may declare the principal amount of all the Securities of such series (or, if any Securities of such
series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof), together with any accrued and unpaid interest thereon, to be due and payable immediately, by a notice in writing
to the Issuer and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration, such principal amount
(or specified amount), together with any accrued and unpaid interest and premium, if any, thereon, shall become immediately due
and payable; provided, however, that payment of principal and interest on the Securities of such Series shall remain subordinated
to the extent provided in Article XV. If an Event of Default specified in Section 501(7) or Section 501(8) with respect to the
Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of such series (or, in the
case of any Security of such series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof), together with any accrued and unpaid interest and premium thereon, shall
automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and
payable; provided, however, that payment of principal and interest on the Securities of such Series shall remain subordinated to
the extent provided in Article XV. Upon payment of such amount in the currency in which such Securities are denominated (except
as otherwise provided), all obligations of the Issuer and the Guarantors, as applicable, in respect of the payment of principal
and interest of the Securities of such series shall terminate.
Except as may otherwise be provided pursuant
to Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration with respect
to the 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 V provided, the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of such series, by written notice to the Issuer, the Guarantors and the Trustee, may rescind and annul
such declaration and its consequences if:
|
|
(1)
|
the Issuer or the Guarantors have paid or deposited with the Trustee a sum sufficient to pay:
|
|
|
(A)
|
all overdue interest on all Securities of such series,
|
|
|
(B)
|
the principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates prescribed therefor in the Securities of such series,
|
|
|
(C)
|
to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such 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;
|
|
|
(2)
|
all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities
of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section
512; and
|
|
|
(3)
|
the rescission would not conflict with any judgment or decree.
|
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.
|
Each of the Issuer and the Guarantors covenants
that if (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or (2) default is made in the payment of the principal of or premium, if any, on any
Security at the Maturity thereof, it will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and premium, if any, and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary 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 any judicial proceeding relative
to the Issuer or the Guarantors (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee any amount due it and any predecessor Trustee under
Section 607.
No provision of this Indenture shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
|
|
Section
|
505.
Trustee May
Enforce Claims Without Possession of Securities
.
|
All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, any predecessor Trustee under Section 607, its agents and counsel,
be for the ratable benefit of the Holders of the Securities 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 V or, after an Event of Default, any money or other property distributable in respect of the Issuer’s obligations
under this Indenture shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee (including any predecessor trustee) hereunder;
SECOND: To holders of Senior
Indebtedness of the Issuer and, if collected from a Guarantor, to holders of Senior Indebtedness of such Guarantor, in each
case to the extent required by, and in accordance with, Article XV and/or Article XVI, as applicable.
THIRD: To the payment of the amounts
then due and unpaid for principal of and premium, if any, and interest on the Securities 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 Securities for principal and premium, if any, and interest, respectively; and
FOURTH: To the payment of the
remainder, if any, to the Issuer or the Guarantors, as applicable.
|
|
Section
|
507.
Limitation
on Suits
.
|
No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver, assignee, trustee, liquidator or sequestrator (or similar official) 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 Securities
of such series;
|
|
|
(2)
|
the Holders of not less than 25% in aggregate principal amount of the Outstanding 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 security or indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
|
|
|
(4)
|
the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of
indemnity; 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 aggregate principal amount of the Outstanding 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 of 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.
Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert Securities
.
|
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and, subject to Section 307, interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repayment, on the Redemption Date or date for repayment, as the case may be, and,
if the terms of such Security so provide, to convert such Security in accordance with its terms) and to institute suit for the
enforcement of any such payment and, if applicable, any such right to convert, and such rights shall not be impaired without the
consent of such Holder.
|
|
Section
|
509.
Rights and
Remedies Cumulative
.
|
Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 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
|
510.
Delay or Omission
Not Waiver
.
|
No delay or omission of the Trustee or of
any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article
V 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
|
511.
Control by
Holders
.
|
The Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities (or, in the case of a matter applicable to less than all Outstanding
Securities, Holders of not less than a majority in aggregate principal amount of all Outstanding Securities affected by such matter)
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 Securities of such series;
provided
that:
|
|
(1)
|
such direction shall not be in conflict with any rule of law or with this Indenture,
|
|
|
(2)
|
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
|
|
|
(3)
|
the Trustee shall have the right to require compliance with Section 603(5).
|
|
|
Section
|
512.
Waiver of Past
Defaults
.
|
The Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its consequences, except a default
|
|
(1)
|
in the payment of the principal of or premium, if any, or interest on any Security of such series, held by a non-consenting
Holder, or
|
|
|
(2)
|
in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series 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
|
513.
Undertaking
for Costs
.
|
In any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including attorneys’ fees and expenses, against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act;
provided
that neither this Section 513 nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any suit instituted by the Issuer, the Guarantors or
the Trustee, a suit by a Holder under Section 508, or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding
Securities.
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Section
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514.
Waiver of Usury,
Stay or Extension Laws
.
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Each of the Issuer and the Guarantors 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 usury, stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and each of the Issuer and the Guarantors (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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Section
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515.
Restoration
of Rights and Remedies
.
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If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Article
VI
THE TRUSTEE
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Section
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601.
Certain Duties
and Responsibilities of Trustee
.
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(1)
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Except during the continuance of an Event of Default with respect to any series of Securities,
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(A)
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the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect
to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee
with respect to such series; and
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(B)
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in the absence of bad faith on its part, the Trustee may conclusively rely with respect to the Securities of such series, 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, statements, opinions or conclusions stated therein).
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(2)
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In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with respect to the Securities of such series, 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.
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(3)
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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:
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(A)
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this Section 601(3) shall not be construed to limit the effect of Section 601(1) or Section 601(4);
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(B)
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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; and
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(C)
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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 aggregate principal amount of the Outstanding Securities of any series, determined
as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
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(4)
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No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it.
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(5)
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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 601.
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(6)
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Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be
sufficient if signed by an Officer of the Issuer and such Officer’s name is evidenced on a certificate setting forth the
names of individuals and/or titles of officers authorized to take specified actions pursuant to this Indenture.
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(7)
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In the absence of bad faith, negligence or willful misconduct on the part of the Trustee, the Trustee shall not be responsible
for the application of any money by any Paying Agent other than the Trustee.
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(8)
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No provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts,
receive or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise
any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Trustee shall
be construed to be a duty.
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Section
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602.
Notice of Defaults
.
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If a Default or an Event of Default occurs
with respect to Securities of any series and is continuing and if it is actually known to a Responsible Officer of the Trustee,
the Trustee shall mail to each Holder of Securities of such series, as their names and addresses appear in the Security Register,
notice of the Default within 90 days after it is known to a Responsible Officer. Except in the case of a Default in payment of
principal of (or premium, if any) or interest on any Security 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 committee of Responsible Officers in good faith determines
that withholding such notice is in the interests of Holders of Securities of such series.
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Section
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603.
Certain Rights
of Trustee
.
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Subject to the provisions of Section 601:
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(1)
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the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or any document believed by it to be genuine and to have been signed or presented by the proper party or parties;
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(2)
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any request or direction of the Issuer or the Guarantors mentioned herein shall be sufficiently evidenced by an Issuer Request
or Issuer Order, or Guarantor Request or Guarantor Order, as the case may be, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution thereof;
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(3)
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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, conclusively rely upon an Officer’s Certificate;
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(4)
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the Trustee may consult with counsel of its selection 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;
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(5)
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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 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;
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(6)
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the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or any 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 Issuer or the Guarantors personally or by agent or attorney at the sole cost
of the Issuer or the Guarantors, as applicable, and shall incur no liability or additional liability of any kind by reason of such
inquiry or investigation;
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(7)
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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;
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(8)
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the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and to its agents;
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(9)
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the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
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(10)
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in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
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(11)
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in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any provision of
any law or regulation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, , sabotage, epidemics, riots and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services (it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance
as soon as practicable under the circumstances);
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(12)
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the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer shall have actual
knowledge thereof, and such notice references the Securities and this Indenture;
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(13)
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a permissive right of the Trustee to take any action under this Indenture shall not be construed as a duty;
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(14)
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the Trustee may request that the Issuer and the Guarantors deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed
by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded; and
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(15)
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notwithstanding any other provision of this Indenture, the Trustee shall be entitled to make a deduction or withholding from
any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the
extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations
thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any
certification or other requirements in respect of the Securities, in which event the Trustee shall make such payment after such
withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and
shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.
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Section
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604.
Not Responsible
for Recitals or Issuance of Securities
.
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The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Guarantors,
as the case may be, 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 Securities. The Trustee shall not be accountable for the use or application
by the Issuer of the Securities or the proceeds thereof. The Trustee shall not be responsible to make any calculation with respect
to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the Issuers’ compliance with
or the breach of, or cause to be performed or observed, any representation, warranty, or covenant, or agreement of any Person,
other than the Trustee, made in this Indenture.
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Section
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605.
May Hold Securities
.
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The Trustee, any Paying Agent, any Security
Registrar or any other agent of the Issuer or the Guarantors, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 608 and Section 613, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
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Section
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606.
Money Held
in Trust
.
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Money held by the Trustee in trust hereunder
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuer or the Guarantors, as applicable.
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Section
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607.
Compensation
and Reimbursement
.
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The Issuer and the Guarantors, as the case
may be, jointly and severally, agree:
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(1)
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to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Issuer and the Trustee
hereto for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(2)
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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 reasonable expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ), except
any such expense, disbursement or advance as may be attributable to its negligence or, willful misconduct, and the Trustee shall
provide the Issuer reasonable notice of any expenditure not in the ordinary course of business; and
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(3)
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to indemnify each of the Trustee or any predecessor Trustee and their officers, agents, directors and employees for, and to
hold them harmless against, any and all loss, damage, claims, liability or expense, including fees and expenses of counsel, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
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In addition to, but without prejudice to
its other rights under this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(7) or (8), the expenses (including the reasonable charges and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
“Trustee” for purposes of this
Section shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct or bad faith of any successor
Trustee hereunder shall not affect the rights of any other predecessor Trustee hereunder.
As security for the performance of the obligations
of the Issuer under this Section, the Trustee shall have a lien prior to the Securities as to all property and funds held or collected
by it hereunder, except with respect to funds held in trust for the payment of principal (and premium, if any) on particular Securities.
The provisions of this Section 607 shall
survive the satisfaction and discharge of the Indenture, the termination for any reason of this Indenture and the resignation or
removal of the Trustee, and any payments or reimbursements due under this Section 607 shall not be subordinated to the payment
of Senior Indebtedness under Article XV.
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Section
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608.
Conflicting
Interests
.
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If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 310(b) 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, Section 310(b) of the Trust Indenture Act and this
Indenture.
To the extent permitted by Section 310(b)
of the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
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Section
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609.
Corporate Trustee
Required; Eligibility
.
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There shall at all times be one (and only
one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital
and surplus of at least $50,000,000 and has its Corporate Trust Office in a city in the United States that is acceptable to the
Issuer and the Guarantors. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its
most recent annual report of condition so published. If at any time the Trustee with respect to the Securities of any series shall
cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article VI.
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Section
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610.
Resignation
and Removal; Appointment of Successor
.
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No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice thereof to the Issuer and the Guarantors. If the instrument
of acceptance by a successor Trustee required by Section 611 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 Issuer or the Guarantors, any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities
of such series, upon written notice delivered to the Trustee, to the Issuer and the Guarantors. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the Trustee being removed may petition, at the expense of the Issuer or the Guarantors, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
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(1)
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the Trustee shall fail to comply with Section 608 after written request therefor by the Issuer, the Guarantors or any Holder
who has been a
bona fide
Holder of a Security for at least six months, or
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(2)
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the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Issuer,
the Guarantors or any such Holder, or
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(3)
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the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (A) the Issuer or the Guarantors may
remove the Trustee with respect to all Securities or (B) subject to Section 513, Holders of 10% in aggregate principal amount of
Securities of any series who have been
bona fide
Holders of such Securities for at least six months may, on behalf of themselves
and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Issuer or the Guarantors shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered
to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the Issuer or the Guarantors. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Issuer, the Guarantors or the Holders and accepted
appointment in the manner required by Section 611, Holders of 10% in aggregate principal amount of Securities of any series who
have been
bona fide
Holders of Securities of such series for at least six months may, on behalf of themselves and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Issuer or the Guarantors, as the case
may be, shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
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Section
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611.
Acceptance
of Appointment by Successor
.
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In case of the appointment hereunder of
a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Issuer, the Guarantors, as the case may be, and the retiring Trustee a written instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee, but, on the
request of the Issuer, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges and subject
to its lien provided for in Section 607, execute and deliver a written instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of
a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, as the case
may be, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and 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 Securities of that or those series and the Guarantees thereof
to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series and the Guarantees thereof 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 Securities of that or those series to which the appointment of such successor Trustee relates; but,
on request of the Issuer, the Guarantors or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee,
the Issuer and the Guarantors, as the case may be, shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph,
as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VI.
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Section
|
612.
Merger, Conversion,
Consolidation or Succession to Business
.
|
Any Person into which the Trustee may be
merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder;
provided
that such Person shall be otherwise qualified and eligible
under this Article VI, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities; and in case at that time any Securities
shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
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Section
|
613.
Preferential
Collection of Claims Against Issuer
.
|
If and when the Trustee shall be or become
a creditor of the Issuer or the Guarantors, as the case may be (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuer or the Guarantors (or
any such other obligor) .
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Section
|
614.
Appointment
of Co-Trustees
.
|
At any time or times, for the purpose of
meeting the legal requirements of any applicable jurisdiction, each of the Issuer and the Trustee shall have the power to appoint,
and, upon the written request of the Trustee or of the Holders of at least 25% in principal amount of the Securities then Outstanding,
the Issuer and each applicable Guarantor shall for such purpose join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by the Trustee and, if no Event of Default shall have
occurred and be continuing, by the Issuer either to act as co-trustee, jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this
Section 614. If the Issuer or any applicable Guarantor does not join in such appointment within fifteen days after the receipt
by it of a request so to do, or if an Event of Default shall have occurred and be continuing, the Trustee alone shall have power
to make such appointment.
Should any written instrument or instruments
from the Issuer or any Guarantor be required by any co-trustee or separate trustee so appointed to more fully confirm to such co-trustee
or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Issuer and/or such Guarantor.
Every co-trustee or separate trustee shall,
to the extent permitted by law and applicable regulation, but to such extent only, be appointed subject to the following conditions:
(1) the Securities shall be
authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities,
cash and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(2) the rights, powers, duties
and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by such appointment shall be conferred
or imposed upon and exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate trustee jointly,
as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law
or applicable regulation of any jurisdiction in which any particular act is to be performed by the Trustee shall be incompetent
or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee, but solely at the direction of the Trustee;
(3) the Trustee at any time,
by an instrument in writing executed by it, with the concurrence of the Issuer, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 614, and, if an Event of Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the
Issuer. The Issuer and each applicable Guarantor shall join with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section 614; and
(4) neither the Trustee nor
any co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder.
Every instrument appointing any separate
trustee or co-trustee shall refer to this Indenture and the conditions of this
Article VI
. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or
rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Trustee. Every such instrument
shall be filed with the Trustee.
Any separate trustee or co-trustee may at
any time constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law
and applicable regulations, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of his, her or its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law and applicable regulations,
without appointment of a new or successor trustee.
Article
VII
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE ISSUER AND THE GUARANTORS
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|
Section
|
701.
Issuer to Furnish
Trustee Names and Addresses of Holders
.
|
If the Trustee is not the Security Registrar,
the Issuer shall cause the Security Registrar to furnish to the Trustee, in writing at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of Securities of each series.
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|
Section
|
702.
Preservation
of Information; Communications to Holders
.
|
The Trustee shall preserve, in as current
a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may dispose of any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving
and holding the same, agrees with the Issuer, the Guarantors and the Trustee that none of the Issuer, the Guarantors, the Trustee
or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
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Section
|
703.
Reports by
Trustee
.
|
The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. The Trustee shall promptly deliver to the Issuer and the Guarantors a copy of
any report it delivers to Holders pursuant to this Section 703.
A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system, if any,
upon which any Securities are listed (provided the Issuer notifies the Trustee of any such listing), with the Commission, the Issuer
and the Guarantors. The Issuer and the Guarantors will promptly notify the Trustee when any Securities are listed on any stock
exchange or automated quotation system or delisted therefrom.
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Section
|
704.
Reports by
the Issuer and the Guarantors
.
|
The Issuer and any Guarantors shall comply
with all the applicable provisions of the Trust Indenture Act. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and shall not constitute a representation or warranty as to the accuracy or completeness of
the reports, information and documents. The Trustee’s receipt of such is for informational purposes only and shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s
or the Guarantors’ compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates).
Article
VIII
CONSOLIDATION, MERGER AND SALE OF ASSETS
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Section
|
801.
Issuer May
Merge or Transfer Assets Only on Certain Terms
.
|
The Issuer may consolidate with or merge with
or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets
to, in one transaction or a series of related transactions, any other Person,
provided
that:
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(1)
|
the Issuer shall be the continuing entity, or the resulting, surviving or transferee Person shall be a corporation, partnership,
limited liability company, trust or other entity organized and validly existing under the laws of the United States of America
any state thereof or the District of Columbia or Canada or any province or territory thereof, and such successor Person (if not
the Issuer) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, all the obligations
of the Issuer under the Securities and this Indenture and, for each Security that by its terms provides for conversion, shall have
provided for the right to convert such Security in accordance with its terms;
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(2)
|
immediately after giving effect to such transaction and the assumption contemplated by clause (1) above, no Default or Event
of Default shall have occurred and be continuing; and
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(3)
|
the Issuer shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and such supplemental indenture, if any, complies with this Indenture and
all conditions precedent provided for in the Indenture have been complied with.
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|
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Section
|
802.
Successor Person
Substituted
.
|
Upon any consolidation of the Issuer with,
or merger of the Issuer into, any other Person or any sale, transfer, lease or conveyance of all or substantially all of the properties
and assets of the Issuer, in each case in accordance with Section 801, the successor Person shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture, with the same effect as if such successor Person
had been an original party to this Indenture, and the Issuer shall be released from all of its liabilities and obligations under
this Indenture and the Securities.
Article
IX
modifications and SUPPLEMENTAL INDENTURES
|
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Section
|
901.
Modifications
or Supplemental Indentures Without Consent of Holders
.
|
Without the consent of any Holders, the
Issuer, the Guarantors, as applicable, and the Trustee, at any time and from time to time, may modify this Indenture or enter into
one or more indentures supplemental hereto, for any of the following purposes:
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(1)
|
to add to the covenants for the benefit of the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantors, as the case may
be;
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(2)
|
to evidence the succession of another Person to the Issuer or the Guarantors, as the case may be, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer or the Guarantors, as the
case may be, pursuant to Article VIII or any applicable indentures supplemental hereto;
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|
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(3)
|
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series);
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(4)
|
to add additional guarantees or additional Guarantors in respect of all or any series of Securities under this Indenture (which
supplemental indenture may be in the form of Exhibit A), and to evidence the release and discharge of any Guarantor from its obligations
under its Guarantees of all or any series of Securities and its obligations under this Indenture in accordance with the terms of
this Indenture;
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(5)
|
to secure the Securities issued hereunder or to provide that any of the obligations under the Securities or the Indenture shall
be guaranteed and the terms and conditions for the release or substitution of the security or guarantee;
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(6)
|
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611;
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(7)
|
to provide for the issuance of additional Securities of any series;
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(8)
|
to establish the form or terms of Securities of any series or the Guarantees as permitted by Section 201 and Section 301;
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(9)
|
to comply with the rules of any applicable Depositary;
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(10)
|
to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities, provided that any such action will not adversely affect the interests of the Holders
of Securities of that series or any other series of Securities issued under the Indenture in any material respect;
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(11)
|
to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in uncertificated form;
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(12)
|
to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities;
provided
that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the modification
or the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become effective only when there is no Security described
in clause (i) Outstanding;
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(13)
|
to conform the text of this Indenture and the terms of any Securities to the “Description of the Debt Securities”
in an applicable registration statement or the comparable provisions in the applicable prospectus supplement to the extent the
“Description of the Debt Securities” in such applicable registration statement or such comparable provision in such
prospectus supplement was intended to be a verbatim recitation of a provision of this Indenture or Securities, which intent may
be evidenced by an Officer’s Certificate to that effect;
|
(14)
to eliminate any conflict between the terms of the Indenture and the Securities issued thereunder and the Trust Indenture
Act;
(15)
to cure any ambiguity or omission or to correct or supplement any provision of this Indenture which may be defective or
inconsistent with any other provision herein; and
(16)
to change any other provision with respect to matters or questions arising under this Indenture which will not be inconsistent
with any provision of the Indenture;
provided
that such action pursuant to this clause (16) shall not adversely affect
the interests of the Holders of Securities of any series in any material respect.
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Section
|
902.
Modifications
or Supplemental Indentures With Consent of Holders
.
|
With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such modifications or supplemental
indenture (including consents obtained in connection with a tender offer or exchange for Securities), by Act of said Holders delivered
to the Issuer, the Guarantors, as applicable, and the Trustee, the Issuer, the Guarantors, as applicable, and the Trustee may modify
this Indenture or enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture;
provided
,
however
, no such modifications or supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of such series affected thereby:
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(1)
|
change the Stated Maturity of the principal of, or any installment of principal or interest on, any Security
;
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(2)
|
reduce the principal amount of any Security or reduce the amount of the principal of any Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or reduce the rate of interest on any Security
or change or have the effect of changing the time for payment of interest, including defaulted interest, if any, on any Securities
under this Indenture;
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(3)
|
reduce any premium payable upon the redemption of or change the date on which any Security may or must be redeemed;
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(4)
|
change the coin or currency in which the principal of or premium, if any, or interest on any Security is payable;
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(5)
|
make any change in provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any,
and interest on such Securities or to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
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(6)
|
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such modifications or supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain Defaults or Events of Default hereunder and their consequences) provided for
in this Indenture;
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(7)
|
release any Guarantor from any of its obligations under any of its Guarantees or the Indenture, except in accordance with the
terms of this Indenture;
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(8)
|
modify any of the provisions of this Section 902, Section 512 or Section 1005, except to increase any such percentage vote
required or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby;
provided
,
however
, that this clause 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 902 and Section 1005, or the deletion of this proviso, in accordance with the requirements of Section 611
and Section 901(6); or
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(9)
|
modify any of the provisions of this Indenture relating to the subordination of the Securities in a manner adverse to the Holders;
or
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(10)
|
if the Securities of any series are convertible into or for any other securities or property of the Issuer or any other Person,
make any change that adversely affects in any material respect the right to convert any Security of such series (except as permitted
by Section 901) or decrease the conversion or exchange rate or increase the conversion price of any such Security of such series,
unless such decrease or increase is permitted by the terms of such Security.
|
A modification or 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 Securities, or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of
Holders under this Section 902 to approve the particular form of any proposed modification or supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
After a modification or supplemental indenture
under this Section 902 becomes effective, the Issuer and the Guarantors shall mail to the Holders a notice briefly describing such
modification or supplemental indenture or a copy of such modification or supplemental indenture. Any failure of the Issuer and
the Guarantors to mail such supplemental indenture, shall not in any way impair or affect the validity of any such modification
or supplemental indenture.
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|
Section
|
903.
Execution of
Supplemental Indentures
.
|
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article IX 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 and
that all conditions precedent in this Indenture to the execution of such supplemental indenture, if any, have been complied with;
provided
,
however
, that no such Opinion of Counsel shall be required in the case of any supplemental indenture executed
and delivered concurrently with the original execution and delivery of 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.
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|
Section
|
904.
Effect of Supplemental
Indentures
.
|
Upon the execution of any supplemental indenture
under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
|
|
Section
|
905.
Conformity
with Trust Indenture Act
.
|
Every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act.
|
|
Section
|
906.
Reference in
Securities to Supplemental Indentures
.
|
Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article IX 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 Issuer and
the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of the Issuer and the
Guarantors, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Article
X
COVENANTS
|
|
Section
|
1001.
Payment of Principal, Premium, if
any, and Interest
.
|
The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay the principal of and premium, if any, and interest on
the Securities of such series in accordance with the terms of the Securities and this Indenture. Principal and interest shall be
considered paid on the date due if, on or before 11:00 a.m. (New York City time) on such date, the Trustee or the Paying Agent
(or, if the Issuer or any Subsidiary is the Paying Agent, the segregated account or separate trust fund maintained by the Issuer
or such Subsidiary pursuant to Section 1003) holds in accordance with this Indenture money sufficient to pay all principal and
interest then due.
The Issuer shall pay interest on overdue
principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful as provided in Section 307.
Notwithstanding anything to the contrary
contained in this Indenture, the Issuer, the Guarantors or the Paying Agent may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by any domestic or foreign taxing authorities from principal or interest
payments hereunder.
|
|
Section
|
1002.
Maintenance of Office or Agency
.
|
The Issuer will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of such series may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer or exchange, where Securities may be surrendered
for conversion, and where notices and demands to or upon the Issuer or the Guarantors in respect of the Securities of such series
or the Guarantees thereof, as the case may be, and this Indenture may be served. The Issuer will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. Each of the Issuer and the
Guarantors hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Issuer or the Guarantors may also from
time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such
designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Issuer or the Guarantors, as the case may be, will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to any Global Security, and
except as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office of the
Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration
of transfer or exchange, or where successor Securities may be delivered in exchange therefor;
provided
,
however
,
that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with
the provisions of this Indenture.
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|
Section
|
1003.
Money for Securities Payments to Be
Held in Trust
.
|
If the Issuer shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or before each due date for the principal of or premium,
if any, or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of such
Securities a sum sufficient to pay the principal and premium, if any, and interest so becoming due until such sums shall be paid
to such Holders or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Issuer shall have one or more
Paying Agents for any series of Securities, it will, no later than 11:00 a.m. (New York City time) on each due date for the principal
of or premium, if any, or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held in trust for the Holders of such Securities entitled to the same, and (unless such Paying Agent is the Trustee)
the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent
for any series of 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 1003, that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Issuer in making any such payment.
The Issuer may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Issuer 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 Issuer 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.
Subject to any applicable abandoned property
law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal
of or premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal, premium
or interest has become due and payable shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Issuer (and, pursuant to the Guarantees thereof, the Guarantors) for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
|
|
Section
|
1004.
Statement by Officers as to Default
.
|
The Issuer shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Issuer ending after the date hereof an Officer’s Certificate
signed by its principal executive officer, principal financial officer or principal accounting officer, stating whether or not,
to the knowledge of such Officer, the Issuer or the Guarantors are in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture applicable to it (without regard to any period of grace or requirement of notice provided
hereunder) and, if the Issuer or the Guarantors, as the case may be, shall be in default, specifying all such defaults and the
nature and status thereof of which such Officer may have knowledge.
|
|
Section
|
1005.
Waiver of Certain Covenants
.
|
Except as otherwise specified as contemplated
by Section 301 for Securities of such series, the Issuer or the Guarantors, as the case may be, may, with respect to the Securities
of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(21), Section 901(1) or Section 901(8) for the benefit of the Holders of such series or in Article VIII,
if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer or the Guarantors, as
the case may be, and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Article
XI
REDEMPTION OF SECURITIES
|
|
Section
|
1101.
Applicability of Article
.
|
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 such Securities) in accordance with this Article XI.
|
|
Section
|
1102.
Election to Redeem; Notice to Trustee
.
|
The election of the Issuer to redeem any
Securities shall be evidenced by a Board Resolution or an Officer’s Certificate or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election of the Issuer of the Securities of any series (including
any such redemption affecting only a single Security), the Issuer shall, at least fifteen (15) days prior (or such shorter period
as is acceptable to the Trustee) to the date notice of redemption is required to be mailed or caused to be mailed pursuant to Section
1104 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of the Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any restriction or condition on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with such restriction or condition.
Any notice of redemption may, at the Issuer’s
discretion, be subject to one or more restrictions or conditions, including completion of an equity offering or other corporate
transaction.
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|
Section
|
1103.
Selection by Trustee of Securities
to Be Redeemed
.
|
If less than all the Securities of any series
are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, on a
pro
rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate (provided that, in the case of Global Securities,
the Depositary may select Global Securities for redemption pursuant to its Applicable Procedures) and which may provide for the
selection for redemption of a portion of the principal amount of any Security of such series;
provided
that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption
is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been
converted during a selection of securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Issuer
in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs
shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole
or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
|
|
Section
|
1104.
Notice of Redemption
.
|
Notice of redemption shall be given by first-class
mail (or in the case of Securities held in book-entry form, by electronic transmission), postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section
301 for Securities of a series), to each Holder of Securities to be redeemed (with a copy to the Trustee), at such Holder’s
address appearing in the Security Register.
All notices of redemption shall identify
the Securities to be redeemed and shall state:
|
|
(2)
|
the Redemption Price (or the method of calculating such price);
|
|
|
(3)
|
if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities
to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
|
|
|
(4)
|
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
|
|
|
(5)
|
the place or places where each such Security is to be surrendered for payment of the Redemption Price;
|
|
|
(6)
|
for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the
Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion;
|
|
|
(7)
|
that the redemption is for a sinking fund, if such is the case;
|
|
|
(8)
|
if applicable, any restrictions or conditions to such redemption; and
|
|
|
(9)
|
if applicable, the CUSIP numbers of the Securities of such series;
provided
,
however
, that no representation
will be made as to the correctness or accuracy of the CUSIP number, or any similar number, if any, listed in such notice or printed
on the Securities.
|
Notice of redemption of Securities to be
redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request (which may be rescinded or
revoked at any time prior to the time at which the Trustee shall have given such notice to the Holders), by the Trustee in the
name and at the expense of the Issuer. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Securities.
|
|
Section
|
1105.
Deposit of Redemption Price
.
|
By no later than 11:00 a.m. (New York City
time) on any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise)
accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities
called for redemption which are owned by the Issuer or a Subsidiary and have been delivered by the Issuer or such Subsidiary to
the Trustee for cancellation. All money, if any, earned on funds held by the Paying Agent shall be remitted to the Issuer. In addition,
the Paying Agent shall promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of the amounts
necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
If any Security called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption
of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307 or in the terms of such Security) be paid to the Issuer upon Issuer Request or, if
then held by the Issuer, shall be discharged from such trust.
|
|
Section
|
1106.
Securities Payable on Redemption Date
.
|
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Issuer at the Redemption Price, together, if applicable, with accrued interest to the Redemption
Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions
of Section 307;
provided
further
that, unless otherwise specified as contemplated by Section 301, if the Redemption
Date is after a Regular Record Date and on or prior to the Interest Payment Date, the accrued and unpaid interest shall be payable
to the Holder of the redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.
|
|
Section
|
1107.
Securities Redeemed in Part
.
|
Any Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor (with, if the Issuer, the Guarantors or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Issuer, the Guarantors and the Trustee duly executed
by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such Holder, in principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered, with the Guarantee thereof of the Guarantors.
Article
XII
SINKING FUNDS
|
|
Section
|
1201.
Applicability of Article
.
|
The provisions of this Article XII shall
be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated
by Section 301 for such Securities.
The minimum amount of any sinking fund payment
provided for by the terms of any series of Securities is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any series of Securities, the cash 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 Securities
of the series as provided for by the terms of such Securities.
|
|
Section
|
1202.
Satisfaction of Sinking Fund Payments
with Securities
.
|
The Issuer and the Guarantors (1) may deliver
Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of
a series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such Securities;
provided
that the Securities
to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
|
|
Section
|
1203.
Redemption of Securities for Sinking
Fund
.
|
Not less than 45 days (or such shorter period
as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities, the Issuer will deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant
to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall select
the 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 Issuer in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 1106
and Section 1107.
Article
XIII
DEFEASANCE AND COVENANT DEFEASANCE
|
|
Section
|
1301.
Issuer’s or Guarantors’
Option to Effect Defeasance or Covenant Defeasance
.
|
Unless otherwise provided as contemplated
by Section 301, Section 1302 and Section 1303 shall apply to all Securities and each series of Securities, and the Guarantees thereof,
denominated in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant
to Section 301 and upon compliance with the conditions set forth below in this Article XIII; and the Issuer or the Guarantors,
as the case may be, may elect, at its option at any time, to have Section 1302 and Section 1303 applied to any Securities or any
series of Securities and, in each case, the Guarantees thereof, designated pursuant to Section 301 as being defeasible pursuant
to such Section 1302 or Section 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon
compliance with the conditions set forth below in this Article XIII. Any such election shall be evidenced by a Board Resolution,
Officer’s Certificate or in another manner specified as contemplated by Section 301 for such Securities.
|
|
Section
|
1302.
Defeasance and Discharge
.
|
Upon the Issuer’s or the Guarantors’
exercise of its option, if any, to have this Section 1302 applied to any Securities or any series of Securities, and the Guarantees
thereof, or if this Section 1302 shall otherwise apply to any Securities or any series of Securities, each of the Issuer and the
Guarantors, as the case may be, shall be deemed to have been discharged from their obligations with respect to such Securities
and Guarantees as provided in this Section 1302 and the provisions of Article XV hereof shall cease to be effective on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter called “
Defeasance
”). For this
purpose, such Defeasance means that each of the Issuer and the Guarantors shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and Guarantees and to have satisfied all its other obligations under such Securities
and Guarantees and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the
Issuer or the Guarantors, as the case may be, shall execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 1304 and as more fully set forth in such Section 1305, payments in respect of the
principal of and premium, if any, and interest on such Securities when payments are due, (2) the Issuer’s obligations with
respect to such Securities and the Guarantors’ obligations with respect to such Guarantees under Section 304, Section 305,
Section 306, Section 1002 and Section 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article XIII. Subject to compliance with this Article XIII, the Issuer or the Guarantors may exercise their option, if
any, to have this Section 1302 applied to the Securities of any series and the Guarantees thereof notwithstanding the prior exercise
of its option, if any, to have Section 1303 applied to such Securities and Guarantees.
|
|
Section
|
1303.
Covenant Defeasance
.
|
Upon the Issuer’s or the Guarantors’
exercise of their option, if any, to have this Section 1303 applied to any Securities or any series of Securities, and the Guarantees
thereof, or if this Section 1303 shall otherwise apply to any Securities or any series of Securities, and the Guarantees thereof,
(1) the Issuer shall be released from its obligations under, and the Guarantors, as the case may be, shall have no liability in
respect of, Section 801(3), any similar provision contained in any supplemental indenture to this Indenture applicable to the Guarantors
and any covenants provided pursuant to Section 301(21), Section 901(1) or Section 901(8) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Section 501(5) and Section 501(9) shall be deemed not to be or result
in an Event of Default, in each case with respect to such Securities and Guarantees as provided in this Section 1303 and the provisions
of Article XV hereof shall cease to be effective on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter
called “
Covenant Defeasance
”). For this purpose, such Covenant Defeasance means that, with respect to such Securities
and Guarantees, each of the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities and Guarantees shall be unaffected thereby.
|
|
Section
|
1304.
Conditions to Defeasance or Covenant
Defeasance
.
|
The following shall be the conditions to
the application of Section 1302 or 1303 to any Securities or any series of Securities, and the Guarantees thereof:
|
|
(1)
|
The Issuer or the Guarantors shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee
which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article XIII applicable
to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide money in an amount,
or (C) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and premium, if any, and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such Securities.
|
|
|
(2)
|
In the event of an election to have Section 1302 apply to any Securities or any series of Securities, and the Guarantees thereof,
the Issuer or the Guarantors shall have delivered to the Trustee an Opinion of Counsel stating that, subject to customary assumptions
and exclusions, (A) the Issuer or the Guarantors have 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 the applicable U.S. federal income tax law,
in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders and beneficial owner
of such Securities will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to U.S. federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
|
|
|
(3)
|
In the event of an election to have Section 1303 apply to any Securities or any series of Securities, and the Guarantees thereof,
the Issuer or the Guarantors shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary
assumptions and exclusions, the Holders and beneficial owner of such Securities will not recognize gain or loss for U.S. federal
income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will
be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
|
|
|
(4)
|
No Default or Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing
at the time of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to
make such deposit and any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens
in connection therewith).
|
|
|
(5)
|
Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other
material agreement or material instrument to which the Issuer or the Guarantors are a party or by which it is bound.
|
|
|
(6)
|
At the time of such deposit: (A) no default in the payment of all or a portion of principal of (or premium, if any) or interest
on or other obligations in respect of any Senior Indebtedness shall have occurred and be continuing, and no event of default with
respect to any Senior Indebtedness shall have occurred and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise have become due and payable and (B) no other event
with respect to any Senior Indebtedness shall have occurred and be continuing permitting (after notice or the lapse of time, or
both) the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due and payable, or, in the case of either clause (A)
or clause (B) above, each such default or event of default shall have been cured or waived or shall have ceased to exist.
|
|
|
(7)
|
The Issuer or the Guarantors shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which
Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent with respect
to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the satisfaction of the condition in
clause (4)).
|
Before or after a deposit, the Issuer or
the Guarantors may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance
with Article XI.
|
|
Section
|
1305.
Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions
.
|
Subject to the provisions of the last paragraph
of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred
to collectively as the “
Trustee
”) pursuant to Section 1304 in respect of any Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly
or through any such Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and premium, if any, and interest, but money
so held in trust need not be segregated from other funds except to the extent required by law. Money and U.S. Government Obligations
held in trust pursuant to Defeasance or Covenant Defeasance shall not be subject to Article XV.
The Issuer or the Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities;
provided
that the Trustee shall be entitled to
charge any such tax, fee or other charge to such Holder’s account.
Anything in this Article XIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer or the Guarantors from time to time upon Issuer Request or Guarantor
Request, as the case may be, any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any
Securities which are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
|
|
Section
|
1306.
Reinstatement
.
|
If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article XIII with respect to any Securities (and the Guarantees thereof) by reason of
any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities and Guarantees from which the Issuer or the Guarantors have been
discharged or released pursuant to Section 1302 or Section 1303 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIII with respect to such Securities and Guarantees, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities and Guarantees in accordance
with this Article XIII;
provided
,
however
, that (a) if the Issuer or the Guarantors make any payment of principal
of or premium, if any, or interest on any such Security following such reinstatement of its obligations, the Issuer or the Guarantors,
as the case may be, shall be subrogated to the rights, if any, of the Holders of such Securities to receive such payment from the
money so held in trust and (b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental
authority, the Trustee or Paying Agent shall return all such money and U.S. Government Obligations to the Issuer or the Guarantors,
as the case may be, promptly after receiving a written request therefor at any time, if such reinstatement of the obligations of
the Issuer or the Guarantors, as the case may be, has occurred and continues to be in effect.
Article
XIV
REPAYMENT AT THE OPTION OF HOLDERS
|
|
Section
|
1401.
Applicability of Article
.
|
Repayment of Securities of any series before
their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article XIV.
|
|
Section
|
1402.
Repayment of Securities
.
|
Securities of any series subject to repayment
in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid
at a price equal to the principal amount thereof and premium, if any, thereon, together with interest thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Issuer covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money sufficient to pay the principal (or, if so provided by the terms of the Securities
of any series, a percentage of the principal) of, the premium, if any, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
|
|
Section
|
1403.
Exercise of Option
.
|
Securities of any series subject to repayment
at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities.
To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment”
form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing),
must be received by the Issuer at the Place of Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance
with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination
for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount
of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment,
the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series
of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Issuer.
|
|
Section
|
1404.
When Securities Presented for Repayment
Become Due and Payable
.
|
If Securities of any series providing for
repayment at the option of the Holders thereof shall have been surrendered as provided in this Article XIV and as provided by or
pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Issuer on the Repayment Date therein specified, and on and after such Repayment Date (unless
the Issuer shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount
of such Security so to be repaid shall be paid by the Issuer, together with accrued interest and/or premium, if any, to (but excluding)
the Repayment Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon,
unless the Issuer shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section
307.
If the principal amount of any Security
surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any,
thereon accrued to such Repayment Date) and any premium shall, until paid, bear interest from the Repayment Date at the rate of
interest or yield to maturity (in the case of Original Issue Discount Securities) set forth in such Security.
|
|
Section
|
1405.
Securities Repaid in Part
.
|
Upon surrender of any Security which is
to be repaid in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Issuer, a new Security or Securities of the same series, of any authorized denomination
specified by the Holder, in a principal amount equal to and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
Article
XV
SUBORDINATION
|
|
Section
|
1501.
Agreement to Subordinate
.
|
The Issuer covenants and agrees, and each
Holder by accepting a Security covenants and agrees that, anything in this Indenture or the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment, to
the extent provided herein, to all Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter
created, incurred or assumed, and that the subordination is for the benefit of the holders of Senior Indebtedness.
|
|
Section
|
1502.
Distribution on Dissolution, Liquidation
and Reorganization
.
|
Upon any distribution of assets of the Issuer
upon any dissolution, winding up, liquidation or reorganization of the Issuer, whether in bankruptcy, insolvency, reorganization
or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities
of the Issuer or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting
the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and
the Holders thereof by a plan of reorganization under applicable bankruptcy law):
|
|
(1)
|
the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium,
if any) and interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (and
premium, if any) or interest on indebtedness evidenced by the Securities; and
|
|
|
(2)
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any payment or distribution of the Issuer of any kind or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of this Article XV shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
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(3)
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in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, shall be received by the Trustee on behalf of the Holders of the
Securities or the Holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution
shall be paid over, upon written notice to the Trustee, to the holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which the instrument evidencing any of such Senior
Indebtedness may have been issued, ratably as aforesaid, for application to payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
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Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Issuer applicable to Senior Indebtedness until the principal of
(and premium, if any) and interest on the Securities shall be paid in full and no such payments or distributions to the Holders
of the Securities of cash, property, or securities otherwise distributable to the holders of Senior Indebtedness shall, as between
the Issuer, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities be deemed to be a payment
by the Issuer to or on account of the Securities. It is understood that the provisions of this Article XV are and are intended
solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Nothing contained in this Article XV or
elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Issuer, its creditors other than
the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Issuer, which is unconditional and
absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the
Securities and creditors of the Issuer other than the holders of Senior Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV of the holders of Senior Indebtedness in respect of
cash, property or securities of the Issuer received upon the exercise of any such remedy.
Upon any payment or distribution
of assets of the Issuer referred to in this Article XV, the Trustee, subject to the provisions of Section 601 and Section
603, shall be entitled to conclusively rely upon a certificate of the liquidating trustee or agent or other person making
any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent to this Article XV. The Trustee, however, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder
if it shall pay or distribute to or on behalf of Holders of Securities or the Issuer or any other Person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this Article XV. If the Trustee or any Holder of
Securities does not file a proper claim or proof of debt in the form required in any proceeding referred to above prior to 30
days before the expiration of the time to file such claim in such proceeding, then the holder of any Senior Indebtedness is
hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of such Holder of
Securities.
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Section
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1503.
No Payment on Securities in Event
of Default on Senior Indebtedness
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No payment by the Issuer on account of principal
(or premium, if any), sinking funds or interest on the Securities shall be made unless full payment of amounts then due for principal,
premium, if any, sinking funds, and interest on Senior Indebtedness has been made or duly provided for.
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Section
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1504.
Payments on Securities Permitted
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Nothing contained in this Indenture or in
any of the Securities shall (a) affect the obligation of the Issuer to make, or prevent the Issuer from making, at any time except
as provided in Section 1502 and Section 1503, payments of principal (and premium, if any) or interest of the Securities or (b)
prevent the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal
of (and premium, if any) or interest on the Securities, unless the Trustee shall have received at its Corporate Trust Office written
notice of any event prohibiting the making of such payment more than two Business Days prior to the date fixed for such payment.
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Section
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1505.
Trustee to Effectuate Subordination
.
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Each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article XV and appoints the Trustee his attorney-in-fact for any and all such purposes.
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Section
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1506.
Notices to Trustee
.
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The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer which would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Failure to give such notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this Article XV or any other provisions of this Indenture, neither the
Trustee nor any Paying Agent (other than the Issuer) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any payment of moneys to or by the Trustee or such Paying
Agent, unless and until the Trustee or such Paying Agent shall have received (in the case of the Trustee, at its Corporate
Trust Office) written notice thereof from the Issuer or from the holder of any Senior Indebtedness or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority
of such trustee; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation, the payment of either the principal (and
premium, if any) or interest on any Security) the Trustee shall not have received with respect to such moneys the notice
provided for in this Section 1506, then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary, which may be received by it within two Business Days prior to such date. The
Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to
be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by
a holder of Senior Indebtedness or a trustee on behalf of any such holder. 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 Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XV and, if such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive such payment.
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Section
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1507.
Trustee as Holder of Senior Indebtedness
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The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive the Trustee
of any of its rights as such holder. Nothing in this Article XV shall apply to claims, of, or payments to, the Trustee under or
pursuant to Section 607.
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Section
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1508.
Modification of Terms of Senior Indebtedness
.
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Any renewal or extension of the time of
payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done
all without notice to or assent from the Holders of the Securities or the Trustee. No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in
respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness
is outstanding or of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article XV or of the Securities relating to the subordination
thereof.
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Section
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1509.
Reliance on Judicial Order or Certificate
of Liquidation Agent
.
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Upon any payment or distribution of assets
of the Issuer referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which each insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
therein, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV. The Issuer,
for itself, its successors and assigns, covenants and agrees, and each Holder of Securities by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if any) and interest on each and all of the Securities
is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment
in full of all Senior Indebtedness.
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Section
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1510.
Subordination Rights Not Impaired
by Acts or Omissions of the Issuer or Holders of Senior Indebtedness
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No right of any present or future holders
of any Senior Indebtedness 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 Issuer or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Issuer 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 Indebtedness, may at any time or from time to time
and in their absolute direction, change the manner, place or terms of payment, change or extend the time of payment of, or renew
or alter, any such Senior Indebtedness, or amend or supplement any instrument pursuant to which any such Senior Indebtedness 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 such Senior Indebtedness, including, without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without affecting the obligations of the Issuer, the Trustee or the
Holders of Securities under this Article XV.
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Section
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1511.
Trustee Not Fiduciary for Holders
of Senior Indebtedness
.
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The Trustee shall not be deemed to
owe any fiduciary duty to the holders of the Senior Indebtedness, and shall not be liable to any such holders if it
shall mistakenly pay over or distribute money or assets to securityholders or the Issuer. With respect to the holders of
Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article XV and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
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Section
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1512.
Defeasance
.
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The terms of this Article XV shall not apply
to payments from money or the proceeds from U.S. Government Obligations held in trust by the Trustee for the payment of principal
and interest on the Securities pursuant to Section 1305.
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Section
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1513.
Applicability of Article
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Unless specified otherwise pursuant to Section
301 for Securities of a series, this Article XV shall apply to each series of Securities issued under this Indenture.
Article
XVI
SUBORDINATED GuaranteeS
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Section
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1601.
Subordinated Guarantees
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The payment of the principal of, and premium,
if any, and interest on the Securities of each series and all other amounts due and payable under this Indenture shall be guaranteed
(each such guarantee, a “
Guarantee
”) by such Guarantors, and on such terms and subject to such conditions, as
shall be established pursuant to Section 301 with respect to the Securities of such series. The Person(s) who shall initially be
the Guarantors of the Securities of any series may include any and all such Persons as the Issuer may determine;
provided
that prior to the initial issuance of Securities that are to be guaranteed, the parties hereto and such Person shall enter into
a supplemental indenture pursuant to Section 901(4) hereof whereby such Person shall become a Guarantor under this Indenture.
Unless specified otherwise pursuant to Section
301 for Securities of a series, the subordination provisions in Article XV shall apply to each guarantee of a series of Securities
issued under this Indenture.
Anything in this Indenture, the Securities
or any Guarantee to the contrary notwithstanding, the obligations of each Guarantor under its Guarantees and this Indenture shall
be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities
of such Guarantor (including any other Guarantees), result in the obligations of such Guarantor under its Guarantees and this Indenture
not constituting a fraudulent transfer or conveyance under any Bankruptcy Law or any similar federal, state or foreign law affecting
the rights of creditors generally.
No Guarantee shall be valid and obligatory
for any purpose with respect to any Security until the certificate of authentication or such Security shall have been signed by
or on behalf of the Trustee.
* * *
[
Signature page follows
]
IN WITNESS WHEREOF, the parties have caused
this Indenture to be duly executed as of the date first written above.
MDC partners inc.,
as Issuer
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By
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Name:
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Title:
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The Bank of New York Mellon
, as Trustee
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By
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Name:
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Title:
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[Signature Page to Indenture]
EXHIBIT A
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “
Supplemental Indenture
”), dated as of [__________] [__], 20[__], among __________________ (the
“
Guaranteeing Subsidiary
”), a subsidiary of MDC Partners Inc., a Canadian corporation (the “
Issuer
”),
the Issuer and
The Bank of New York Mellon
, as trustee (the “
Trustee
”).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed
and delivered to the Trustee an indenture (the “
Indenture
”), dated as of [_________], providing for the issuance
of an unlimited aggregate principal amount of debt securities (the “
Securities
”);
WHEREAS, the Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to
which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Issuer’s payment obligations under a specified
series of the Securities on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 901(4) of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders as follows:
1.
Capitalized Terms
. Capitalized
terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.
Guarantor
. The Guaranteeing Subsidiary
hereby becomes a Guarantor under the Indenture and is bound by the terms of the Indenture applicable to Guarantors of [
name
of specific series of Securities
] (the “
Specified Securities
”), including Article XVI of the Indenture
and [Article][Section] [
] of the Supplemental Indenture dated as of [__________] [__], 20[
] relating to the Specified
Securities.
3.
Governing Law, etc
. THIS SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[I
nsert for non-U.S. Guaranteeing Subsidiary
:
The Guaranteeing Subsidiary has appointed [______] as its authorized agent (the “
Authorized Agent
”) upon whom
all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or
the Securities which may be instituted in any federal or state court in the Borough of Manhattan, New York City. The Guaranteeing
Subsidiary hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Guaranteeing Subsidiary agrees to take any and all action, including the filing of any and
all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Securities
remain outstanding. The Guaranteeing Subsidiary agrees that the appointment of the Authorized Agent shall be irrevocable so long
as any of the Securities remain outstanding or until the irrevocable appointment by the Guaranteeing Subsidiary of a successor
agent in the Borough of Manhattan, New York City as its authorized agent for such purpose and the acceptance of such appointment
by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process
upon the Guaranteeing Subsidiary.]
4.
Waiver of Jury Trial
. EACH OF
THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE ISSUER, THE GUARANTORS AND THE TRUSTEE ONLY ARISING OUT OF OR
RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE GUARANTEES OR THE SECURITIES.
5.
Counterparts
. The parties may
sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or portable document
format (“
PDF
”) transmission shall constitute effective execution and delivery of this Supplemental Indenture
as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
6.
Headings
. The section headings
of this Supplemental Indenture are for convenience only and shall not affect the construction hereof.
7.
Binding Obligation
. This Supplemental
Indenture has been duly executed and delivered by the Guaranteeing Subsidiary and constitutes a valid and binding agreement of
the Guaranteeing Subsidiary, enforceable against the Guaranteeing Subsidiary in accordance with its terms, except as the enforcement
thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the rights and remedies of creditors, (b) general equitable principles (whether considered in a proceeding
in equity or law) and (c) an implied covenant of good faith and fair dealing.
8.
Separability Clause
. In case
any provision in this Supplemental Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.
Ratification of Indenture; Supplemental
Indenture Part of Indenture
. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form
a part of the Indenture for all purposes, and every Holder of a Security heretofore or hereafter authenticated and delivered shall
be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
The recitals and statements herein are deemed to be those of the Issuer and the Guaranteeing Subsidiary and not those of the Trustee,
and the Trustee assumes no responsibility for their correctness.
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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[NAME OF
GUARANTEEING SUBSIDIARY
],
as a Guarantor
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By
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Name:
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Title:
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MDC PARTNERS INC., as Issuer
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By
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Name:
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Title:
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The Bank of New York Mellon
, as Trustee
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By
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Name:
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Title:
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March 10, 2014
MDC Partners Inc.
745 Fifth Avenue
New York, New York 10151
Ladies and Gentlemen:
We have acted as counsel
to MDC Partners Inc., a corporation organized under the laws of Canada (the “Company”), in connection with the Registration
Statement on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to debt
securities, which may be either senior (“Senior Debt Securities”) or subordinated (the “Subordinated Debt Securities”)
(collectively, the “Debt Securities”). The Debt Securities may be issued and sold or delivered from time to time as
set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”)
and supplements to the Prospectus and pursuant to Rule 415 under the Securities Act in an indeterminate amount.
The Senior Debt Securities
will be issued under an Indenture (the “Senior Indenture”) between the Company and The Bank of New York Mellon, as
trustee. The Subordinated Debt Securities will be issued under an Indenture (the “Subordinated Indenture”) between
the Company and The Bank of New York Mellon, as trustee. The Senior Indenture and the Subordinated Indenture are hereinafter referred
to collectively as the “Indentures.”
We have examined the
Registration Statement and the form of the Indentures, which have been filed with the Commission as exhibits to the Registration
Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents
and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions
hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents
of public officials and of officers and representatives of the Company.
In rendering the opinion
set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates
or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that: (1)
at the time of the execution, authentication, issuance and delivery of the Senior Debt Securities, the Senior Indenture will be
the valid and legally binding obligation of the Senior Trustee; (2) at the time of the execution, authentication, issuance and
delivery of the Subordinated Debt Securities, the Subordinated Indenture will be the valid and legally binding obligation of the
Subordinated Trustee. We have assumed further that at the time of execution, authentication, issuance and delivery of the Debt
Securities, the applicable Indenture will have been duly authorized, executed and delivered by the Company.
We have
assumed further that, at the time of execution, authentication, issuance and delivery of the Indentures and the Debt
Securities, (1) the Company will be validly existing and in good standing under the laws of Canada and the Indentures will
have been duly authorized, executed and delivered by the Company in accordance with its Certificate of Amalgamation and
By-laws and the law of Canada, (2) the execution, delivery and performance by the Company of the Indentures and the Debt
Securities will not violate the law of Canada or any other jurisdiction other than the law of the State of New York and (3)
the execution, delivery and performance by the Company of the Indentures and the Debt Securities will not constitute a
breach or violation of any agreement or instrument which is binding upon the Company or its Certificate of Amalgamation or
By-laws.
Based upon the foregoing,
and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that, assuming (a) the taking
of all necessary corporate action to approve the issuance and terms of any Debt Securities, the terms of the offering thereof and
related matters by the Board of Directors of the Company, a duly constituted and acting committee thereof (such Board of Directors,
committee or authorized officers being referred to herein as the “Board”) or duly authorized officers of the Company
(“Authorized Officers”) and (b) the due execution, authentication, issuance and delivery of such Debt Securities, upon
payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved
by the Board or Authorized Officers and otherwise in accordance with the provisions of the applicable Indenture and such agreement,
such Debt Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance
with their terms.
Our opinion set forth
above is subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) to the effects of the possible
judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights. In addition,
we express no opinion as to the validity, legally binding effect or enforceability of (i) the waiver of rights and defenses contained
in Section 114 of the Indentures or (ii) Section 110 of the Indentures relating to the separability of provisions of the Indenture.
We do not express any
opinion herein concerning any law other than the law of the State of New York.
We hereby consent to
the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption
“Legal
Matters”
in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher &
Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
Stikeman Elliott LLP Barristers &
Solicitors
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9
Tel: (416) 869-5500 Fax: (416) 947-0866
www.stikeman.com
The Board of Directors of MDC Partners Inc.
725 Fifth Avenue
New York, New York
10151
Dear Sirs/Mesdames:
Re: MDC
Partners Inc.
We
have acted as special Canadian counsel to MDC Partners Inc. (the “
Corporation
”), a corporation
incorporated under the federal laws of Canada, with respect to certain legal matters relating to the registration of an
indefinite amount
of securities of the Corporation pursuant to a Registration Statement
on Form S-3 dated March 10
, 2014
(the “
Registration Statement
”) filed
by the Corporation with the Securities and Exchange Commission (the “
SEC
”) pursuant to the U.S.
Securities
Act
of 1933, as amended (the “
1933 Act
”), which securities of the Corporation may consist of,
inter
alia
, Class A Subordinate Voting Shares (“
Class A Shares
”) or preference shares
(“
Preference
Shares
”), and any combination of such securities. The Class A Shares and Preference
Shares issuable under the Registration Statement are hereinafter collectively referred to as the
“
Securities
”. The Securities will be offered in amounts, at prices, and on terms to be set out in
supplements (each a “
Prospectus
Supplement
”) to the prospectus contained in the Registration
Statement, to be duly filed by the Corporation with the SEC pursuant to the 1933 Act.
Examinations
In rendering the opinions below, we have
examined and relied upon:
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(b)
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a certificate (the “
Corporation Certificate
”) of an officer of the Corporation dated the date hereof certifying certain matters including, among other things:
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TORONTO
MONTREAL
OTTAWA
CALGARY
VANCOUVER
NEW YORK
LONDON
SYDNEY
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|
|
(i)
|
the articles of the Corporation (the “
Articles
”);
|
|
|
|
|
|
|
(ii)
|
the by-laws of the Corporation (the “
By-Laws
”); and
|
|
|
|
|
|
|
(iii)
|
certain factual matters; and
|
|
|
|
|
|
|
(c)
|
a certificate of compliance (the “
Certificate of Compliance
”) dated the date hereof issued pursuant to the
Canada Business Corporations Act
relating to the Corporation.
|
|
|
|
|
In such examination,
we have assumed, without independent verification, the genuineness of all signatures (whether original or photostatic), the legal
capacity of natural persons, the authenticity of all documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies. We have assumed, without independent verification, the accuracy
of the relevant facts stated therein.
We have considered
such questions of law and examined such statutes and regulations of the Province of Ontario and of Canada applicable therein as
they exist on the date hereof, as we considered necessary or relevant as a basis for our opinions.
Jurisdiction
and Effective Date
Our opinions herein
are restricted to and based upon the laws of the Province of Ontario and the federal laws of Canada applicable therein in force
on the date hereof (collectively, “
Ontario
Law
”). We have made no investigation of the laws of any jurisdiction
other than Ontario Law.
We assume no obligation
to revise or supplement this opinion should Ontario Law change subsequent to the date hereof by legislative action, judicial decision
or otherwise or if there is a change in any fact or facts after the date hereof.
Reliance
and Assumptions
We have assumed that,
in connection with the issuance of Securities pursuant to the Registration Statement:
|
|
(a)
|
the Corporation will have taken all necessary action to establish the definitive terms of each
class or series of Securities in accordance with the Articles, By-Laws, all applicable laws, all applicable regulatory requirements,
the Registration Statement, and any relevant Prospectus Supplement;
|
|
|
(b)
|
the definitive terms of each class or series of Securities, and all agreements relating thereto
will at all relevant times be consistent with the description of such Securities set out in the Registration Statement, and no
Prospectus Supplement will provide for the Securities, or any agreements relating thereto, to bear terms which are not consistent
with, or which are exceptions to, the terms set forth in the Registration Statement;
|
|
|
(c)
|
in the case of and prior to the issuance of any Class A Shares, (i) the Corporation will have taken
all necessary action to authorize and approve the issuance of such Class A Shares, the terms of the offering of such Class A Shares
including the consideration to be received by the Corporation upon the issuance thereof, and all related matters (the “
Class
A Shares Issuance
Authorization
”), and (ii) the Class A Shares will have been issued in compliance with the Class
A Shares Issuance Authorization, the Articles, the By-Laws, all applicable laws and all applicable regulatory requirements;
|
|
|
(d)
|
in the case of and prior to the issue of a class or series of Preference Shares, (i) the Corporation
will have taken all necessary action to authorize and approve the creation, definitive terms of and issuance of such class or series
of Preference Shares, the terms of the offering of such class or series of Preference Shares including the consideration to be
received by the Corporation upon the issuance thereof, and all related matters (the “
Preference
Share
Issuance
Authorization
”), (ii) the Corporation will have taken all necessary action to create such class or series of Preference
Shares in accordance with the Preference Share Issuance Authorization and applicable laws, (iii) such class or series of Preference
Shares will have been issued in compliance with the Preference Share Issuance Authorization, the Articles, the By-Laws, all applicable
laws and all applicable regulatory requirements, (iv) the Preference Shares will not be convertible into or exchangeable or exercisable
for any other Securities and (v) the form of certificate representing the class or series of Preference Shares will have been duly
executed, authenticated and delivered in compliance with the provisions of the Preference Share Issuance Authorization, the Articles,
the By-Laws, all applicable laws and all applicable regulatory requirements;
|
|
|
(e)
|
the provisions of each series of Preference Shares will be consistent with the rights, privileges,
restrictions and other attributes applicable to the class of Preference Shares under the Articles;
|
|
|
(f)
|
the sale, issuance and delivery of the Class A Shares and Preference Shares, (i) will comply with
the Articles, By-Laws, all applicable laws and all applicable regulatory requirements, and (ii) will not constitute or result in
a breach of or a default under, and will not create a state of facts which, after notice or lapse of time or both, would result
in a breach of or default under, and will not conflict with, the Articles, By-Laws, any applicable laws, any applicable regulatory
requirements, any agreement or instrument binding upon the Corporation, or any requirements or restrictions imposed by any court
or governmental body having jurisdiction over the Corporation;
|
|
|
(g)
|
where the Registration Statement provides that the Securities, or any agreements relating thereto,
shall contain certain terms unless the relevant Prospectus Supplement provides otherwise, no Prospectus Supplement shall provide
otherwise;
|
|
|
(h)
|
the Corporation will issue and deliver the Securities in the manner contemplated by, and within
the limits as to aggregate value or aggregate principal amount set out in, the Registration Statement;
|
|
|
(i)
|
the Corporation will have received payment in full of the consideration for such Securities in
money or in property or past services that are not less in value than the fair equivalent of the money that the Corporation would
have received if the Securities had been issued for money as determined by the board of directors of the Corporation, all as provided
for in the applicable Class A Share Issuance Authorization and Preference Share Issuance Authorization, as the case may be;
|
|
|
(j)
|
the Corporation shall at all relevant times continue to be in existence as a corporation incorporated
under the
Canada Business Corporations Act
and shall not be insolvent or have been dissolved; and
|
|
|
(k)
|
the Articles and By-Laws will remain unamended at all relevant times except as may be required
in connection with any issuance of Preference Shares.
|
Opinions
On the basis of the
foregoing assumptions and subject to the qualifications and limitations hereinafter expressed, we are of the opinion that:
|
|
1.
|
the Class A Shares issued pursuant to the Registration Statement will be validly issued as fully
paid and non-assessable shares in the capital of the Corporation; and
|
|
|
2.
|
the Preference Shares issued pursuant to the Registration Statement will be validly issued as fully
paid and non-assessable shares in the capital of the Corporation.
|
Limitation
We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal
Matters” and “Enforceability of Civil Liabilities” in the Registration Statement. In giving such consent, we
do not thereby admit that we are experts with respect to any part of the Registration Statement, including this exhibit, within
the meaning of the term “expert” as used in the 1933 Act or the rules and regulations of the SEC issued thereunder.
This opinion is being delivered in connection with the filing of the Registration Statement described herein and must not be relied
upon in connection with any other matter or transaction, including any specific offering of Securities, without our prior written
consent, or quoted from or referred to in any other documents or furnished (either in its original form or by copy) to any other
party. We undertake no duty to update or supplement this opinion to reflect subsequent factual or legal developments which may
come or be brought to our attention.
Yours truly,
/s/
Stikeman Elliott LLP
Consent
of Independent Registered Public Accounting Firm
Board
of Directors and Stockholders
MDC
Partners Inc.
New
York, New York
Toronto,
Canada
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our reports
dated March 10, 2014, relating to the consolidated financial statements, the effectiveness of MDC Partners Inc.’s internal
control over financial reporting, and schedules of MDC Partners Inc. appearing in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2013.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/
BDO USA, LLP
New
York, New York
March
10, 2014
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
_________________
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
New York
|
13-5160382
|
|
(Jurisdiction of incorporation
|
(I.R.S. Employer
|
|
if not a U.S. national bank)
|
Identification No.)
|
|
|
|
|
One Wall Street
|
|
|
New York, New York
|
10286
|
|
(Address of principal executive offices)
|
(Zip code)
|
Legal Department
The Bank of New York Mellon
One Wall Street, 15th Floor
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent
for service)
MDC PARTNERS INC.
(Exact name of obligor as specified in its charter)
|
Canada
|
98-0364441
|
|
(State or other jurisdiction
|
(I.R.S. Employer
|
|
of incorporation or organization)
|
Identification No.)
|
|
|
|
|
745 Fifth Avenue
|
|
|
New York, New York
|
10151
|
|
(Address of principal executive offices)
|
(Zip code)
|
_________________
Senior Debt Securities
(Title of the indenture
securities)
|
|
Item 1.
|
General Information.
|
Furnish the following information as to
the Trustee:
|
|
(a)
|
Name and address of each examining or supervising
authority to which it is subject.
|
|
Superintendent of Banks of the
|
One State Street, New York, N.Y. 10004-1417
|
|
State of New York
|
and Albany, N.Y. 12203
|
|
Federal Reserve Bank of New York
|
33 Liberty Plaza, New York, N.Y. 10045
|
|
Federal Deposit Insurance Corporation
|
550 17th Street, N.W., Washington, D.C. 20429
|
|
New York Clearing House Association
|
New York, N.Y. 10005
|
|
|
(b)
|
Whether it is authorized to exercise corporate trust
powers.
|
Yes.
|
|
Item 2.
|
Affiliations with Obligor.
|
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None.
|
|
Item 16.
|
List of Exhibits.
|
Exhibits identified in parentheses below,
on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
|
|
1.
|
-
|
A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed as Exhibit 25.1 to Current Report on Form 8-K of Nevada Power Company, Date of Report (Date of Earliest Event Reported) July 25, 2008 (File No. 000-52378).)
|
|
|
|
|
|
|
|
4.
|
-
|
A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 with Registration Statement No. 333-155238.)
|
|
|
|
|
|
|
|
6.
|
-
|
The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152856.)
|
|
|
|
|
|
|
|
7.
|
-
|
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the
Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the __ day of February, 2014.
|
|
THE BANK OF NEW YORK MELLON
|
|
|
|
|
|
|
|
By:
|
/s/ Latoya Elvin
|
|
|
|
Name:
|
Latoya Elvin
|
|
|
|
Title:
|
Vice President
|
EXHIBIT 7
(Page i of ii)
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 2013, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
|
ASSETS
|
|
Dollar Amounts
In Thousands
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin
|
|
$
|
4,786,000
|
|
|
Interest-bearing balances
|
|
|
131,555,000
|
|
|
Securities:
|
|
|
|
|
|
Held-to-maturity securities
|
|
|
18,997,000
|
|
|
Available-for-sale securities
|
|
|
75,760,000
|
|
|
Federal funds sold and securities purchased under agreements to resell
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
77,000
|
|
Securities purchased under agreements to
resell
|
|
|
3,205,000
|
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
0
|
|
Loans and leases, net of unearned
income
|
|
|
30,771,000
|
|
LESS: Allowance for loan and
lease losses
|
|
|
195,000
|
|
Loans and leases, net of unearned
income and allowance
|
|
|
30,576,000
|
|
|
Trading Assets
|
|
|
7,072,000
|
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
1,191,000
|
|
|
Other real estate owned
|
|
|
3,000
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
1,111,000
|
|
|
Not applicable
|
|
|
|
|
|
Intangible assets:
|
|
|
|
|
|
Goodwill
|
|
|
6,481,000
|
|
|
Other intangible assets
|
|
|
1,289,000
|
|
|
Other assets
|
|
|
14,523,000
|
|
|
Total assets
|
|
$
|
296,626,000
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
In domestic offices
|
|
$
|
130,876,000
|
|
|
Noninterest-bearing
|
|
|
84,804,000
|
|
|
Interest-bearing
|
|
|
46,072,000
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
|
|
121,987,000
|
|
|
Noninterest-bearing
|
|
|
10,462,000
|
|
|
Interest-bearing
|
|
|
111,525,000
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
|
|
Federal funds purchased in domestic
offices
|
|
|
2,989,000
|
|
Securities sold under agreements to
repurchase
|
|
|
1,810,000
|
|
|
Trading liabilities
|
|
|
5,741,000
|
|
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
5,040,000
|
|
|
Not applicable
|
|
|
|
|
|
Not applicable
|
|
|
|
|
|
Subordinated notes and debentures
|
|
|
1,065,000
|
|
|
Other liabilities
|
|
|
7,038,000
|
|
|
Total liabilities
|
|
$
|
276,546,000
|
|
|
|
|
|
|
|
|
Not applicable
|
|
|
|
|
|
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
Perpetual preferred stock and related
surplus
|
|
|
0
|
|
|
Common stock
|
|
|
1,135,000
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
9,867,000
|
|
|
Retained earnings
|
|
|
9,446,000
|
|
|
Accumulated other comprehensive income
|
|
|
-718,000
|
|
|
Other equity capital components
|
|
|
0
|
|
|
Total bank equity capital
|
|
|
19,730,000
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
350,000
|
|
|
|
|
|
|
|
|
Total equity capital
|
|
|
20,080,000
|
|
|
|
|
|
|
|
|
Total liabilities, minority interest, and equity capital
|
|
$
|
296,626,000
|
|
EXHIBIT 7
(Page ii of ii)
I, Thomas P. Gibbons, Chief Financial Officer
of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Thomas P. Gibbons,
Chief Financial Officer
We, the undersigned directors, attest to
the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of
our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
|
Gerald L. Hassel
Catherine A. Rein
John P. Surma
|
|
Directors
|
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
_________________
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
New York
|
13-5160382
|
|
(Jurisdiction of incorporation
|
(I.R.S. Employer
|
|
if not a U.S. national bank)
|
Identification No.)
|
|
|
|
|
One Wall Street
|
|
|
New York, New York
|
10286
|
|
(Address of principal executive offices)
|
(Zip code)
|
Legal Department
The Bank of New York Mellon
One Wall Street, 15th Floor
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent
for service)
MDC PARTNERS INC.
(Exact name of obligor as specified in its charter)
|
Canada
|
98-0364441
|
|
(State or other jurisdiction
|
(I.R.S. Employer
|
|
of incorporation or organization)
|
Identification No.)
|
|
|
|
|
745 Fifth Avenue
|
|
|
New York, New York
|
10151
|
|
(Address of principal executive offices)
|
(Zip code)
|
_________________
Subordinated Debt Securities
(Title
of the indenture securities)
|
|
Item 1.
|
General Information.
|
Furnish the following information as to
the Trustee:
|
|
(a)
|
Name and address of each examining or supervising
authority to which it is subject.
|
|
Superintendent of Banks of the
|
One State Street, New York, N.Y. 10004-1417
|
|
State of New York
|
and Albany, N.Y. 12203
|
|
Federal Reserve Bank of New York
|
33 Liberty Plaza, New York, N.Y. 10045
|
|
Federal Deposit Insurance Corporation
|
550 17th Street, N.W., Washington, D.C. 20429
|
|
New York Clearing House Association
|
New York, N.Y. 10005
|
|
|
(b)
|
Whether it is authorized to exercise corporate trust
powers.
|
Yes.
|
|
Item 2.
|
Affiliations with Obligor.
|
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None.
|
|
Item 16.
|
List of Exhibits.
|
Exhibits identified in parentheses below,
on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
|
|
1.
|
-
|
A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed as Exhibit 25.1 to Current Report on Form 8-K of Nevada Power Company, Date of Report (Date of Earliest Event Reported) July 25, 2008 (File No. 000-52378).)
|
|
|
|
|
|
|
|
4.
|
-
|
A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 with Registration Statement No. 333-155238.)
|
|
|
|
|
|
|
|
6.
|
-
|
The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152856.)
|
|
|
|
|
|
|
|
7.
|
-
|
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the
Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the __ day of February, 2014.
|
|
THE BANK OF NEW YORK MELLON
|
|
|
|
|
|
|
|
By:
|
/s/ Latoya Elvin
|
|
|
|
Name:
|
Latoya Elvin
|
|
|
|
Title:
|
Vice President
|
EXHIBIT 7
(Page i of ii)
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 2013, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
|
ASSETS
|
|
Dollar Amounts
In Thousands
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin
|
|
$
|
4,786,000
|
|
|
Interest-bearing balances
|
|
|
131,555,000
|
|
|
Securities:
|
|
|
|
|
|
Held-to-maturity securities
|
|
|
18,997,000
|
|
|
Available-for-sale securities
|
|
|
75,760,000
|
|
|
Federal funds sold and securities purchased under agreements to resell
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
77,000
|
|
Securities purchased under agreements to
resell
|
|
|
3,205,000
|
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
0
|
|
Loans and leases, net of unearned
income
|
|
|
30,771,000
|
|
LESS: Allowance for loan and
lease losses
|
|
|
195,000
|
|
Loans and leases, net of unearned
income and allowance
|
|
|
30,576,000
|
|
|
Trading Assets
|
|
|
7,072,000
|
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
1,191,000
|
|
|
Other real estate owned
|
|
|
3,000
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
1,111,000
|
|
|
Not applicable
|
|
|
|
|
|
Intangible assets:
|
|
|
|
|
|
Goodwill
|
|
|
6,481,000
|
|
|
Other intangible assets
|
|
|
1,289,000
|
|
|
Other assets
|
|
|
14,523,000
|
|
|
Total assets
|
|
$
|
296,626,000
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
In domestic offices
|
|
$
|
130,876,000
|
|
|
Noninterest-bearing
|
|
|
84,804,000
|
|
|
Interest-bearing
|
|
|
46,072,000
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
|
|
121,987,000
|
|
|
Noninterest-bearing
|
|
|
10,462,000
|
|
|
Interest-bearing
|
|
|
111,525,000
|
|
|
Federal funds purchased and securities sold under agreements to repurchase
|
|
|
|
|
Federal funds purchased in domestic
offices
|
|
|
2,989,000
|
|
Securities sold under agreements to
repurchase
|
|
|
1,810,000
|
|
|
Trading liabilities
|
|
|
5,741,000
|
|
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
5,040,000
|
|
|
Not applicable
|
|
|
|
|
|
Not applicable
|
|
|
|
|
|
Subordinated notes and debentures
|
|
|
1,065,000
|
|
|
Other liabilities
|
|
|
7,038,000
|
|
|
Total liabilities
|
|
$
|
276,546,000
|
|
|
|
|
|
|
|
|
Not applicable
|
|
|
|
|
|
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
Perpetual preferred stock and related
surplus
|
|
|
0
|
|
|
Common stock
|
|
|
1,135,000
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
9,867,000
|
|
|
Retained earnings
|
|
|
9,446,000
|
|
|
Accumulated other comprehensive income
|
|
|
-718,000
|
|
|
Other equity capital components
|
|
|
0
|
|
|
Total bank equity capital
|
|
|
19,730,000
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
350,000
|
|
|
|
|
|
|
|
|
Total equity capital
|
|
|
20,080,000
|
|
|
|
|
|
|
|
|
Total liabilities, minority interest, and equity capital
|
|
$
|
296,626,000
|
|
EXHIBIT 7
(Page ii of ii)
I, Thomas P. Gibbons, Chief Financial Officer
of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Thomas P. Gibbons,
Chief Financial Officer
We, the undersigned directors, attest to
the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of
our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
|
Gerald L. Hassel
Catherine A. Rein
John P. Surma
|
|
Directors
|