Exhibit 1.1
Execution Version
EMC Corporation
1.875% Notes Due 2018
2.650% Notes Due 2020
3.375% Notes Due 2023
Underwriting Agreement
New York, New York
June 3, 2013
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
EMC
Corporation, a corporation organized under the laws of Massachusetts (the “Company”), proposes to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the “Securities”), to be issued under an indenture (the “Indenture”) to be dated as of
June 6, 2013, between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”). Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date
of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in
this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form S-3, including a related Base Prospectus, for registration under
the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an
amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will
file with the Commission the Final Prospectus. As filed, the Final Prospectus shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the
Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the term sheet prepared and filed pursuant to Section 5(b)) as the Company has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on each Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of the Final Prospectus and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, when taken together as a whole with the Disclosure
Package, as of the Execution Time, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
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(d) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act
or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, and
(iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and
is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereto
does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus or the final term sheet based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(g) The interactive data in the eXtensible Business Reporting Language (“XBRL”) included or
incorporated by reference in the Registration Statement fairly presents in all material respects the information called for and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable
thereto.
Each of the Company and its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X, each a
“Subsidiary” and collectively, the “Subsidiaries”) (i) has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited liability company or limited partnership, as applicable, in good
standing under the laws of the jurisdiction in which it is chartered, organized or formed (to the extent the concept of good standing is applicable in such jurisdiction), as applicable, with full corporate, limited
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liability company or partnership, as applicable, power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and (ii) except where the failure to be so qualified or be in good standing in such other jurisdictions would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, is
duly qualified as a foreign corporation, limited liability company or limited partnership, as applicable, to do business and is in good standing under the laws of each other jurisdiction which requires such qualification.
(h) All the outstanding shares of capital stock or other ownership interests of each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances, except to the extent such perfected security interest or other security interest, claim, lien or
encumbrance would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(i) There is no franchise, contract or other document of a character required to be described in the Registration Statement or the Disclosure Package, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required.
(j) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as
amended.
(k) No consent, approval, authorization, filing with or order of any court or governmental agency or
body is required to be obtained by the Company in connection with the transactions contemplated herein, except such as have been or will be obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter
or by-laws of the Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the
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Company or any of its subsidiaries or any of its or their properties, except, with respect to (ii) and (iii), as would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect or a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby.
(m) The Indenture has been duly authorized by the Company and duly qualified under the Trust Indenture Act and, at the Closing Date, will have been duly executed and delivered and will constitute a legal,
valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at
law), entitled to the benefits of the Indenture;
(n) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly in all material respects the financial condition,
results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the periods indicated, comply in all material respects as to form with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The selected financial data set forth under the caption “Selected
Consolidated Financial Information” incorporated by reference in the Preliminary Prospectus, the Final Prospectus and Registration Statement fairly present in all material respects, on the basis stated, the information included therein.
(o) No action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(p) Neither the Company nor any
Subsidiary is in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
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mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except, with respect to (ii) and (iii), as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Disclosure Package and the Final Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(r) The Company and its Subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses as presently
conducted, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus or where the failure to possess the same would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and
neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(s) The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its subsidiaries’ internal controls over financial reporting are
effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.
(t) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are
reasonably effective to perform the functions for which they were established subject to the limitations of any such control system.
(u) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
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(v) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or
potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive and comply with required permits, licenses or other approvals, or liability would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect, or except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(w) The Company does not anticipate that it will incur any costs and liabilities under Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties) which would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(x) There is and has been no failure in any material respect on the part of the Company
and, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,
including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(y) Neither
the Company nor, to the knowledge of the Company, any of its subsidiaries or any director, officer or employee of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a material
sanction for violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder or the U.K. Bribery Act 2010 or similar law of any other relevant jurisdiction; and prohibition of
noncompliance therewith is covered by the codes of conduct or other procedures instituted and maintained by the Company and its Subsidiaries.
(z) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements and the applicable
money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the “Money Laundering
Laws”) and no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
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(aa) Neither the Company nor any of its subsidiaries nor, to the knowledge
of the Company, any director, officer or employee of the Company or any of its subsidiaries (i) is currently subject to any sanctions administered by the United States (including any administered or enforced by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”) or (ii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person in any manner that will result in a violation of any economic sanctions imposed by the United States (including any administered or enforced by OFAC, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department
of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or controlled by Her Majesty’s Treasury) (collectively, “Sanctions” and such persons, “Sanction
Persons”), or could result in the imposition of Sanctions against, any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(bb) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer or
employee of the Company or any of its subsidiaries, is a person that is, or is 50% or more owned or otherwise controlled by a person that is the subject of any Sanctions.
(cc) Except as has been disclosed to the Underwriters or is not material to the analysis under any Sanctions, to the
Company’s knowledge, neither the Company nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a country or territory that is, or whose government is, the subject
of Sanctions that broadly prohibit dealings with that country or territory (currently, Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”), in the preceding three
years, nor does the Company or any of its subsidiaries have any plans to increase its dealings or transactions with Sanctioned Persons, or with or in Sanctioned Countries.
(dd) There are no significant subsidiaries (as defined in Rule 1-02 of Regulation S-X) of the Company other than the
subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
(ee) To the knowledge of the Company, the Company and its Subsidiaries own, possess, license or have other rights to use all patents, patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property necessary for the conduct of the Company’s business as now conducted or as proposed in the Disclosure Package and
the Final Prospectus to be conducted, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Except as set forth in or contemplated in the Disclosure Package and the Final Prospectus,
(a) to the knowledge of the Company, the Company is not infringing or otherwise violating any patent, trademark, copyright, trade secret or other proprietary
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rights of others; and (b) there is no pending or threatened action, suit, proceeding or claim by others alleging such infringement or violation by the Company, and the Company is unaware of
any facts which would form a reasonable basis for any such claim, except in each case as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters
. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object promptly after receipt thereof. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives (such approval not to be
unreasonably withheld) with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request, received by the Company,
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by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission (of which issuance the Company has knowledge) of any stop order suspending the effectiveness of the Registration Statement or receipt by the Company of any notice of the Commission objecting
to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the final term sheet, containing solely a description of final terms of the Securities and
the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If,
at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus
as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
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(e) As soon as practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish, upon request, to the Representatives and counsel for the Underwriters, without charge,
conformed copies of the Registration Statement (without exhibits thereto) for each of the Underwriters and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the offering.
(g) The Company will
arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and will maintain such qualifications in effect so long as required for the distribution of
the Securities; provided that in no event shall the Company be obligated to (i) qualify to do business in any jurisdiction where it is not now so qualified, (ii) take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and
each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule
433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
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(i) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing)
of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities
issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction, on or prior to the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with
the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; (ix) any fees charged by any “nationally recognized statistical rating organization” (as defined by Section 3(a)(62) of the Exchange Act) (each, a “Rating Agency”) for rating the Securities, (x) the
fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
12
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder required to be performed at or prior to the Closing Date and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period
required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or notice of objection of the Commission to the use of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form agreed upon by the parties.
(c) The Representatives shall have received from Cleary Gottlieb Steen & Hamilton LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus
(together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company,
signed by (x) the Chairman of the Board, the Vice Chairman of the Board or the President of the Company and (y) the principal financial or accounting officer of the Company, provided that the signers of such certificate pursuant to clauses
(x) and (y) shall not be the same person, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or
amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that each such signer certifies, in his or her capacity as an officer of the Company, that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
13
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice of the Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the
Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, that would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, in each case, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any Rating Agency or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of
14
the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, at One Liberty Plaza, New York, New York, 10006, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses
. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global Markets Inc. on demand for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them solely and directly in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and
each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or in any amendment thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement
relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
15
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading “Underwriting” or “Plan of Distribution”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences
related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not,
16
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively
“Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the
offering of the Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by the Company, and
benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
17
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be
subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
common stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iii) there shall have occurred, in the sole judgment of the Representatives, any Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (iv) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services, (v) there
shall have occurred any downgrading or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company by any Rating Agency or
(vi) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
18
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, affiliates, agents or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on receipt, and, if sent to
the Representatives, will be mailed, delivered or telefaxed to (i) the Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912), and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street,
New York, New York, 10013, Attention: General Counsel, (ii) J.P. Morgan Securities LLC General Counsel (fax no.: 212-834-6081), and confirmed to the General Counsel, J.P. Morgan Securities LLC, at 383 Madison Avenue, New York, New
York, 10179, Attention: Investment Grade Syndicate Desk – 3
rd
Floor and (iii) Merrill Lynch, Pierce, Fenner & Smith Incorporated (fax no.: 212-901-7881), and confirmed to the Merrill Lynch, Pierce, Fenner & Smith Incorporated, at 50
Rockefeller Plaza, New York, New York, 10020, Attention: High Grade Debt Capital Markets Transaction Management/Legal, with a copy to Jeff Karpf, Esq., Cleary Gottlieb Steen & Hamilton LLP (fax no.: 212-225-3999), and confirmed to Jeff
Karpf, Esq., Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006; or, if sent to the Company, will be mailed, delivered or telefaxed to EMC Corporation (fax no. 508-497-6915), and confirmed to it at EMC
Corporation, 176 South Street, Hopkinton, Massachusetts, 01748, attention of the Legal Department, with a copy to Margaret A. Brown, Esq. and Gregg A. Noel, Esq., Skadden, Arps, Slate, Meagher & Flom LLP (fax no.:617-573-4822), and
confirmed to Margaret A. Brown, Esq. and Gregg A. Noel, Esq., Skadden, Arps, Slate, Meagher & Flom LLP, One Beacon Street, Boston, Massachusetts 02108.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling
persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14.
No
Fiduciary Duty
. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any
affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering
and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15.
Integration
. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
19
16.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17.
Waiver of Jury Trial
. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
19.
Headings
. The section headings used herein are for convenience only and shall not affect the construction hereof.
20.
Definitions
. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended and the rules and regulations of the Commission
promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean
any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most
recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto, if any, and (v) any other
Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto relating to the Securities became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.
20
“Final Prospectus” shall mean the prospectus supplement relating
to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Material Adverse Effect” shall mean any material adverse effect on the financial condition, results of operations, business or properties of the Company and its subsidiaries, taken as a whole.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus
referred to in paragraph 1(a) above which relates to the Securities and is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits, financial statements and documents incorporated by reference, and any
prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and “Rule
433” refer to such rules under the Act.
“Trust Indenture Act” shall mean the Trust Indenture
Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
21.
Patriot Act Acknowledgement
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients,
as well as other information that will allow the Underwriters to properly identify their respective clients.
21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
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Very truly yours,
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EMC Corporation
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By:
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/s/ Paul T. Dacier
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Name:
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Paul T. Dacier
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Title:
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Executive Vice President and General
Counsel
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The foregoing Agreement is
hereby confirmed and accepted
as of the date
specified in
Schedule I hereto.
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Citigroup Global Markets Inc.
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J.P. Morgan Securities LLC
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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By:
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Citigroup Global Markets Inc.
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By:
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/s/ Brian Bednarski
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Name:
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Brian Bednarski
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Title:
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Managing Director
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By:
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J.P. Morgan Securities LLC
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By:
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/s/ Stephen L. Sheiner
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Name:
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Stephen L. Sheiner
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Title:
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Executive Director
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By: Merrill Lynch, Pierce, Fenner & Smith
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Incorporated
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By:
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/s/ Laurie Campbell
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Name:
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Laurie Campbell
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Title:
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Managing Director
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For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
23
SCHEDULE I
Underwriting Agreement dated June 3, 2013
Registration Statement No. 333-188933
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Representatives:
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Citigroup Global Markets Inc.
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J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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Title, Purchase Price and Description of Securities:
2018 Notes
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Title:
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1.875% Notes due 2018
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Principal amount:
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$2,500,000,000
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Purchase price (include accrued interest or amortization, if any):
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99.443%
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Sinking fund provisions:
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None.
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Redemption provisions:
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Callable at any time at a make-whole premium of comparable maturity U.S. Treasury plus 15 bps.
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2020 Notes
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Title:
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2.650% Notes due 2020
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Principal amount:
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$2,000,000,000
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Purchase price (include accrued interest or amortization, if any):
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99.185%
|
|
|
|
|
Sinking fund provisions:
|
|
None.
|
|
|
|
|
Redemption provisions:
|
|
Callable at any time at a make-whole premium of comparable maturity U.S. Treasury plus 20 bps.
|
2023 Notes
|
|
|
|
|
Title:
|
|
3.375% Notes due 2023
|
|
|
|
|
Principal amount:
|
|
$1,000,000,000
|
|
|
|
|
Purchase price (include accrued interest or amortization, if any):
|
|
99.325%
|
|
|
|
|
|
|
|
|
Sinking fund provisions:
|
|
None.
|
|
|
|
|
Redemption provisions:
|
|
Callable at any time at a make-whole premium of comparable maturity U.S. Treasury plus 20 bps; provided, however, if the Securities are redeemed on or after 3 months prior to the
maturity date, the make-whole premium will be zero.
|
Closing Date, Time and Location: June 6, 2013 at 10:00 a.m. at One Liberty Plaza, New York, New York, 10006.
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Company may offer or sell debt securities issued or guaranteed by the Company without the consent
of the Representative(s): June 6, 2013.
2
SCHEDULE II
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underwriters
|
|
Principal Amount
of 1.875% Notes
due 2018 to be
Purchased
|
|
|
Principal Amount
of 2.650% Notes
due 2020 to be
Purchased
|
|
|
Principal Amount
of 3.375% Notes
due 2023 to be
Purchased
|
|
|
|
|
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
416,500,000
|
|
|
$
|
333,200,000
|
|
|
$
|
166,600,000
|
|
|
J.P. Morgan Securities LLC
|
|
|
416,500,000
|
|
|
|
333,200,000
|
|
|
|
166,600,000
|
|
|
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
|
|
|
416,500,000
|
|
|
|
333,200,000
|
|
|
|
166,600,000
|
|
|
Barclays Capital Inc.
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
Deutsche Bank Securities Inc.
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
Goldman, Sachs & Co.
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
Morgan Stanley & Co. LLC
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
RBS Securities Inc.
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
UBS Securities LLC
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
104,250,000
|
|
|
|
83,400,000
|
|
|
|
41,700,000
|
|
|
BMO Capital Markets Corp.
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
BNP Paribas Securities Corp.
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
HSBC Securities (USA) Inc.
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
ING Financial Markets LLC
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
PNC Capital Markets LLC
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
SG Americas Securities, LLC
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
34,750,000
|
|
|
|
27,800,000
|
|
|
|
13,900,000
|
|
|
Banca IMI S.p.A.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Evercore Group L.L.C.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Jefferies LLC
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
KeyBanc Capital Markets Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Lloyds Securities Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Mizuho Securities USA Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Needham & Company, LLC
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Raymond James & Associates, Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
RBC Capital Markets, LLC
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Santander Investment Securities Inc.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
SMBC Nikko Capital Markets Limited
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
The Williams Capital Group, L.P.
|
|
|
16,000,000
|
|
|
|
12,800,000
|
|
|
|
6,400,000
|
|
|
Total
|
|
$
|
2,500,000,000
|
|
|
$
|
2,000,000,000
|
|
|
$
|
1,000,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
Final pricing term
sheet substantially in the form set forth in Schedule IV
SCHEDULE IV
Filed Pursuant to Rule 433
Registration Statement No. 333-188933
Issuer Free Writing Prospectus dated June 3, 2013
Relating to Preliminary Prospectus Supplement dated June 3, 2013
Pricing Term Sheet
1.875% Notes due 2018
2.650% Notes due 2020
3.375% Notes due 2023
The information in this pricing term sheet relates only to the offering of securities described herein (the “Notes Offering”) and should be
read together with (i) the preliminary prospectus supplement dated June 3, 2013 relating to the Notes Offering, including the documents incorporated by reference therein, and (ii) the accompanying prospectus dated May 30, 2013,
each filed with the Securities and Exchange Commission. The information in this pricing term sheet supplements the preliminary prospectus supplement and supersedes the information in the preliminary prospectus supplement to the extent inconsistent
with the information in the preliminary prospectus supplement.
|
|
|
|
|
Issuer:
|
|
EMC Corporation
|
|
|
|
|
Securities:
|
|
1.875% Notes due 2018 (the “2018 Notes”)
2.650% Notes due 2020 (the “2020 Notes”)
3.375% Notes due 2023 (the “2023
Notes”)
|
|
|
|
|
Offering Format:
|
|
SEC Registered
|
|
|
|
|
Principal Amount:
|
|
$2,500,000,000 of the 2018 Notes
$2,000,000,000 of the 2020 Notes
$1,000,000,000
of the 2023 Notes
|
|
|
|
|
Maturity Date:
|
|
June 1, 2018 for the 2018 Notes
June 1, 2020 for the 2020 Notes
June 1, 2023 for
the 2023 Notes
|
|
|
|
|
Coupon:
|
|
1.875% per year for the 2018 Notes
2.650% per year for the 2020 Notes
3.375% per year for the 2023 Notes
|
|
|
|
|
Price to Public:
|
|
99.943% of principal amount for the 2018 Notes
99.760% of principal amount for the 2020 Notes
99.925% of principal amount for the 2023
Notes
|
|
|
|
|
Yield to Maturity:
|
|
1.887% for the 2018 Notes
2.688% for the 2020 Notes
3.384% for the 2023
Notes
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+85 bps for the 2018 Notes
+115 bps for the 2020 Notes
+125 bps for the 2023 Notes
|
|
|
|
|
Benchmark Treasury:
|
|
UST 1.000% due May 31, 2018 for the 2018 Notes
UST 1.375% due May 31, 2020 for the 2020 Notes
UST 1.750% due May 15, 2023 for the 2023
Notes
|
|
|
|
|
|
Benchmark Treasury Price:
|
|
99-26 1/4 for the 2018 Notes
98-29+ for the 2020 Notes
96-18+ for the 2023
Notes
|
|
|
|
|
Benchmark Treasury Yield:
|
|
1.037% for the 2018 Notes
1.538% for the 2020 Notes
2.134% for the 2023
Notes
|
|
|
|
|
Interest Payment Dates:
|
|
Semi-annually on June 1 and December 1, commencing on December 1, 2013
|
|
|
|
|
Make-Whole Call Redemption:
|
|
+15 bps for the 2018 Notes
+20
bps for the 2020 Notes
+20 bps for the 2023 Notes
|
|
|
|
|
Par Redemption:
|
|
Not applicable for the 2018 Notes
Not applicable for the 2020 Notes
On or after March 1, 2023 (3 months prior to the maturity date)
for the 2023 Notes
|
|
|
|
|
Day Count Convention:
|
|
30 / 360
|
|
|
|
|
Pricing Date:
|
|
June 3, 2013
|
|
|
|
|
Settlement Date:
|
|
June 6, 2013 (T+3)
|
|
|
|
|
CUSIP / ISIN:
|
|
268648 AP7 / US268648AP77 for the 2018 Notes
268648 AQ5 / US268648AQ50 for the 2020 Notes
268648 AN2 / US268648AN20 for the 2023
Notes
|
|
|
|
|
Denominations:
|
|
$2,000 and any integral multiple of $1,000 in excess thereof
|
|
|
|
|
Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley &
Co. LLC
RBS Securities Inc.
UBS
Securities LLC
Wells Fargo Securities, LLC
|
|
|
|
|
Co-Managers:
|
|
BMO Capital Markets Corp.
BNP
Paribas Securities Corp.
BNY Mellon Capital Markets, LLC
Credit Suisse Securities (USA) LLC
HSBC Securities (USA) Inc.
ING Financial Markets LLC
PNC Capital Markets
LLC
SG Americas Securities, LLC
U.S.
Bancorp Investments, Inc.
Banca IMI S.p.A.
Evercore Group L.L.C.
Jefferies LLC
KeyBanc Capital Markets Inc.
Lloyds Securities Inc.
Mitsubishi UFJ Securities (USA), Inc.
Mizuho
Securities USA Inc.
Needham & Company, LLC
Raymond James & Associates, Inc.
RBC Capital Markets, LLC
Santander Investment Securities Inc.
SMBC Nikko
Capital Markets Limited
The Williams Capital Group, L.P.
|
|
|
|
|
|
Pro Forma Ratio of Earnings to Fixed Charges:
|
|
The Issuer’s pro forma ratio of earnings to fixed charges, after giving effect to this offering, would have been 20.22x for the three months ended March 31, 2013 and
27.03x for the twelve months ended December 31, 2012.
|
The issuer has filed a registration statement (including a prospectus) with the U.S. Securities and Exchange
Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the
issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and
prospectus supplement if you request it by calling Citigroup Global Markets Inc. toll-free at (800) 831-9146, J.P. Morgan Securities LLC collect at (212) 834-4533 or Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at
(800) 294-1322.
Any legends, disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such legends, disclaimers or other notices have been automatically generated as a result of this communication having been sent via Bloomberg or another system.
Exhibit 4.1
EMC CORPORATION
and
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Trustee
Indenture
Dated as of June 6, 2013
Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture, dated as of June 6, 2013, between EMC CORPORATION and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee:
|
|
|
|
|
|
|
SECTION OF THE ACT
|
|
SECTION OF INDENTURE
|
|
|
310(a)(1) and (2)
|
|
|
6.9
|
|
|
310(a)(3) and (4)
|
|
|
Inapplicable
|
|
|
310(b)
|
|
|
6.8 and 6.10(a), (b) and (d)
|
|
|
310(c)
|
|
|
Inapplicable
|
|
|
311(a)
|
|
|
6.14
|
|
|
311(b)
|
|
|
6.14
|
|
|
311(c)
|
|
|
Inapplicable
|
|
|
312(a)
|
|
|
4.1 and 4.2
|
|
|
312(b)
|
|
|
4.2
|
|
|
312(c)
|
|
|
4.2
|
|
|
313(a)
|
|
|
4.3
|
|
|
313(b)(1)
|
|
|
Inapplicable
|
|
|
313(b)(2)
|
|
|
4.3
|
|
|
313(c)
|
|
|
4.3, 5.11, 6.10, 6.11, 8.2
and 12.2
|
|
|
313(d)
|
|
|
4.3
|
|
|
314(a)
|
|
|
3.5 and 4.2
|
|
|
314(b)
|
|
|
Inapplicable
|
|
|
314(c)(1) and (2)
|
|
|
11.5
|
|
|
314(c)(3)
|
|
|
Inapplicable
|
|
|
314(d)
|
|
|
Inapplicable
|
|
|
314(e)
|
|
|
11.5
|
|
|
314(f)
|
|
|
Inapplicable
|
|
|
315(a), (c) and (d)
|
|
|
6.1
|
|
|
315(b)
|
|
|
5.11
|
|
|
315(e)
|
|
|
5.12
|
|
|
316(a)(1)
|
|
|
5.9 and 5.10
|
|
|
316(a)(2)
|
|
|
Not required
|
|
|
316(a) (last sentence)
|
|
|
7.4
|
|
|
316(b)
|
|
|
5.7
|
|
|
317(a)
|
|
|
5.2
|
|
|
317(b)
|
|
|
3.4(a) and (b)
|
|
|
318(a)
|
|
|
11.7
|
|
|
*
|
This Cross Reference Sheet is not part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
|
|
|
|
|
ARTICLE I DEFINITIONS
|
|
|
|
|
|
SECTION 1.1
|
|
CERTAIN TERMS DEFINED
|
|
|
1
|
|
|
|
|
|
ARTICLE II SECURITIES
|
|
|
|
|
|
SECTION 2.1
|
|
FORMS GENERALLY
|
|
|
7
|
|
|
SECTION 2.2
|
|
FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION
|
|
|
7
|
|
|
SECTION 2.3
|
|
AMOUNT UNLIMITED; ISSUABLE IN SERIES
|
|
|
8
|
|
|
SECTION 2.4
|
|
AUTHENTICATION AND DELIVERY OF SECURITIES
|
|
|
11
|
|
|
SECTION 2.5
|
|
EXECUTION OF SECURITIES
|
|
|
13
|
|
|
SECTION 2.6
|
|
CERTIFICATE OF AUTHENTICATION
|
|
|
13
|
|
|
SECTION 2.7
|
|
DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST
|
|
|
14
|
|
|
SECTION 2.8
|
|
REGISTRATION, TRANSFER AND EXCHANGE
|
|
|
14
|
|
|
SECTION 2.9
|
|
MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES
|
|
|
18
|
|
|
SECTION 2.10
|
|
CANCELLATION OF SECURITIES; DISPOSAL THEREOF
|
|
|
19
|
|
|
SECTION 2.11
|
|
TEMPORARY SECURITIES
|
|
|
19
|
|
|
SECTION 2.12
|
|
CUSIP NUMBERS
|
|
|
20
|
|
|
|
|
|
ARTICLE III COVENANTS OF THE ISSUER
|
|
|
|
|
|
SECTION 3.1
|
|
PAYMENT OF PRINCIPAL AND INTEREST
|
|
|
20
|
|
|
SECTION 3.2
|
|
OFFICES FOR PAYMENTS, ETC.
|
|
|
20
|
|
|
SECTION 3.3
|
|
APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE
|
|
|
21
|
|
|
SECTION 3.4
|
|
PAYING AGENTS
|
|
|
22
|
|
|
SECTION 3.5
|
|
COMPLIANCE CERTIFICATES
|
|
|
22
|
|
|
SECTION 3.6
|
|
CORPORATE EXISTENCE
|
|
|
23
|
|
|
SECTION 3.7
|
|
LUXEMBOURG PUBLICATIONS
|
|
|
23
|
|
|
SECTION 3.8
|
|
CALCULATION OF ORIGINAL ISSUE DISCOUNT
|
|
|
23
|
|
|
|
|
|
ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
|
|
|
|
|
|
SECTION 4.1
|
|
ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS
|
|
|
23
|
|
|
SECTION 4.2
|
|
REPORTS BY THE ISSUER
|
|
|
24
|
|
|
SECTION 4.3
|
|
REPORTS BY THE TRUSTEE
|
|
|
24
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
|
|
|
|
|
SECTION 5.1
|
|
EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT
|
|
|
24
|
|
|
SECTION 5.2
|
|
COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT
|
|
|
27
|
|
|
SECTION 5.3
|
|
APPLICATION OF PROCEEDS
|
|
|
29
|
|
|
SECTION 5.4
|
|
SUITS FOR ENFORCEMENT
|
|
|
30
|
|
|
SECTION 5.5
|
|
RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS
|
|
|
30
|
|
|
SECTION 5.6
|
|
LIMITATIONS ON SUITS BY SECURITY HOLDERS
|
|
|
30
|
|
|
SECTION 5.7
|
|
UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS
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31
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SECTION 5.8
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POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT
|
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31
|
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SECTION 5.9
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CONTROL BY HOLDERS OF SECURITIES
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|
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31
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SECTION 5.10
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WAIVER OF PAST DEFAULTS
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|
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32
|
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SECTION 5.11
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TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES
|
|
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32
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SECTION 5.12
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RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS
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32
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|
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ARTICLE VI CONCERNING THE TRUSTEE
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|
|
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SECTION 6.1
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DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT
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33
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SECTION 6.2
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CERTAIN RIGHTS OF THE TRUSTEE
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34
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SECTION 6.3
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TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF
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36
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SECTION 6.4
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TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC.
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36
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SECTION 6.5
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MONEYS HELD BY TRUSTEE
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36
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SECTION 6.6
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COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM
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36
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SECTION 6.7
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RIGHT OF TRUSTEE TO RELY ON OFFICER’S CERTIFICATE, ETC.
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37
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SECTION 6.8
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INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE
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37
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SECTION 6.9
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QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS
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37
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SECTION 6.10
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PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE
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37
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SECTION 6.11
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RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE
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38
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SECTION 6.12
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE
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39
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SECTION 6.13
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE
|
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40
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SECTION 6.14
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PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER
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41
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SECTION 6.15
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APPOINTMENT OF AUTHENTICATING AGENT
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41
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ii
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ARTICLE VII CONCERNING THE SECURITYHOLDERS
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SECTION 7.1
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EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS
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42
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SECTION 7.2
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PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES
|
|
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42
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SECTION 7.3
|
|
HOLDERS TO BE TREATED AS OWNERS
|
|
|
42
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SECTION 7.4
|
|
SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING
|
|
|
43
|
|
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SECTION 7.5
|
|
RIGHT OF REVOCATION OF ACTION TAKEN
|
|
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43
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|
ARTICLE VIII SUPPLEMENTAL INDENTURES
|
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|
SECTION 8.1
|
|
SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS
|
|
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44
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SECTION 8.2
|
|
SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS
|
|
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46
|
|
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SECTION 8.3
|
|
EFFECT OF SUPPLEMENTAL INDENTURE
|
|
|
48
|
|
|
SECTION 8.4
|
|
DOCUMENTS TO BE GIVEN TO TRUSTEE
|
|
|
48
|
|
|
SECTION 8.5
|
|
NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES
|
|
|
48
|
|
|
|
|
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
|
|
SECTION 9.1
|
|
ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
|
|
|
49
|
|
|
SECTION 9.2
|
|
SUCCESSOR CORPORATION SUBSTITUTED
|
|
|
49
|
|
|
SECTION 9.3
|
|
OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE
|
|
|
49
|
|
|
|
|
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
|
|
|
SECTION 10.1
|
|
SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
49
|
|
|
SECTION 10.2
|
|
APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
|
|
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53
|
|
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SECTION 10.3
|
|
REPAYMENT OF MONEYS HELD BY PAYING AGENT
|
|
|
54
|
|
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SECTION 10.4
|
|
RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS
|
|
|
54
|
|
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SECTION 10.5
|
|
INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS
|
|
|
54
|
|
|
SECTION 10.6
|
|
EFFECT ON SUBORDINATION PROVISIONS
|
|
|
54
|
|
|
|
|
ARTICLE XI MISCELLANEOUS PROVISIONS
|
|
|
SECTION 11.1
|
|
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY
|
|
|
55
|
|
|
SECTION 11.2
|
|
PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS
|
|
|
55
|
|
|
SECTION 11.3
|
|
SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE
|
|
|
55
|
|
iii
|
|
|
|
|
|
|
|
|
SECTION 11.4
|
|
NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS
|
|
|
56
|
|
|
SECTION 11.5
|
|
OFFICER’S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN
|
|
|
57
|
|
|
SECTION 11.6
|
|
PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS
|
|
|
58
|
|
|
SECTION 11.7
|
|
CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
|
|
|
58
|
|
|
SECTION 11.8
|
|
NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL
|
|
|
59
|
|
|
SECTION 11.9
|
|
COUNTERPARTS
|
|
|
59
|
|
|
SECTION 11.10
|
|
EFFECT OF HEADINGS
|
|
|
59
|
|
|
SECTION 11.11
|
|
SECURITIES IN A FOREIGN CURRENCY
|
|
|
59
|
|
|
SECTION 11.12
|
|
JUDGMENT CURRENCY
|
|
|
60
|
|
|
SECTION 11.13
|
|
AGREEMENT TO SUBORDINATE
|
|
|
60
|
|
|
SECTION 11.14
|
|
FORCE MAJEURE
|
|
|
60
|
|
|
SECTION 11.15
|
|
U.S.A. PATRIOT ACT
|
|
|
60
|
|
|
|
|
|
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS
|
|
|
|
|
|
SECTION 12.1
|
|
APPLICABILITY OF ARTICLE
|
|
|
61
|
|
|
SECTION 12.2
|
|
NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS
|
|
|
61
|
|
|
SECTION 12.3
|
|
PAYMENT OF SECURITIES CALLED FOR REDEMPTION
|
|
|
62
|
|
|
SECTION 12.4
|
|
EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION
|
|
|
63
|
|
|
SECTION 12.5
|
|
MANDATORY AND OPTIONAL SINKING FUNDS
|
|
|
63
|
|
iv
THIS INDENTURE, dated as of June 6, 2013, by and between EMC CORPORATION, a
Massachusetts corporation (the “Issuer”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide, among
other things, for the authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to
make this Indenture a valid and legally binding indenture and agreement according to its terms have been done;
NOW,
THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED
.
The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or the
definitions of which in the Securities Act of 1933, as amended (the “Securities Act”), are referred to in the Trust Indenture Act, including terms defined therein by reference to the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meaning assigned to such terms in the Trust Indenture Act and in the Securities Act as in effect from time to time. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted at the time of any
computation unless a different time shall be specified with respect to such series of Securities as provided for in Section 2.3. 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. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
1
“Affiliate” has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor provision.
“Authenticating Agent” shall have the meaning set forth in
Section 6.15.
“Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if
practicable, be
The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”), will, if practicable, be
The Financial Times
(London Edition) and, in
the case of the Grand Duchy of Luxembourg (“Luxembourg”), will, if practicable, be the
Luxemburger Wort
) published in an official or common language of the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in The City of New York, the United Kingdom or Luxembourg, as applicable. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
“Board of Directors” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act on
its behalf.
“Board Resolution” means a copy of one or more resolutions, certified by the secretary or an assistant
secretary of the Issuer to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day” means, with respect to any Security, a day that is not a day on which banking institutions in the city (or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, are authorized or required by any applicable law or regulation to be closed.
“Capital Stock” means, with respect to any corporation, any and all shares, interests, rights to purchase (other than
convertible or exchangeable indebtedness that is not itself otherwise capital stock), warrants, options, participations or other equivalents of or interests (however designated) in stock issued by that corporation.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or
if at any time after the execution and delivery 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 on such date.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered, which office is, as of the date of this Indenture, located at 150 East 42
nd
Street, 40
th
floor, New York, New York 10017, Attention: Corporate Trust Services - Administrator for EMC Corporation.
“Coupon” means any interest coupon appertaining to an Unregistered Security.
“Covenant Defeasance” shall have the meaning set forth in Section 10.1(C).
2
“Depositary” means, with respect to the Securities of any series issuable or
issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered Global Securities of that series.
“Dollar” or
“$” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“Equity Interests” means Capital Stock or partnership, participation or membership interests and all warrants, options or other rights to acquire Capital Stock or partnership, participation or
membership interests (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock or partnership, participation or membership interests).
“Event of Default” means any event or condition specified as such in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Value” when used with respect to any Voting Equity Interests of the Issuer means the fair value as determined in good
faith by the Board of Directors of the Issuer.
“Foreign Currency” means any coin, currency, currency unit or
composite currency, including, without limitation, the euro, issued by the government of one or more countries, other than the United States of America or by any internationally recognized union, confederation or association of such governments.
“Holder,” “Holder of Securities,” “Securityholder” or any other similar terms mean (a) in
the case of any Registered Security, the person in whose name such Security is registered in the security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the case of any Unregistered Security, the
bearer of such Security, or any Coupon appertaining thereto, as the case may be.
“Indenture” means this instrument
as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder,
provided
, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to one or more series of Securities for which such person is trustee, this instrument as originally
executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of those particular series of Securities for which such Person is Trustee established as
contemplated hereunder, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such person is not Trustee, regardless of when such terms or provisions were adopted.
3
“IRS” means the Internal Revenue Service of the United States Department of the
Treasury, or any successor entity.
“Issuer” means (except as otherwise provided in Article IX) EMC Corporation, a
Massachusetts corporation, and, subject to Article IX, its successors and assigns.
“Issuer Order” means a written
statement, request or order of the Issuer signed in its name by the chairman of the Board of Directors, the president, any vice president or the treasurer of the Issuer.
“Judgment Currency” has the meaning set forth in Section 11.12.
“Non-U.S. Person” means any person that is not a “U.S. person” as such term is defined in Rule 902 of the Securities
Act.
“Officer’s Certificate” means a certificate signed by the chairman of the Board of Directors, the
president or any vice president or the treasurer of the Issuer and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.
“Opinion of Counsel” means an opinion in writing signed by legal counsel who is reasonably acceptable to the
Trustee and who may be an employee of or counsel to the Issuer. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.
“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
“Outstanding” (except as otherwise provided in Section 7.4), when used
with reference to Securities, means, subject to the provisions of Section 7.4, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders
of such Securities (if the Issuer shall act as its own paying agent), provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or
provisions satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities which
shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
4
In determining whether the Holders of the requisite principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
“Periodic Offering” means an offering of Securities of a series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance
of such Securities.
“Person” means any individual, corporation, business trust, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal” whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any,” provided, however, that such
inclusion of premium, if any, shall under no circumstances result in the double counting of such premium for the purpose of any calculation required hereunder.
“record date” shall have the meaning set forth in Section 2.7.
“Registered Global Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4 and any other legend required by the Depositary for such series.
“Registered Security” means any Security registered on the books of the Registrar.
“Registrar” means the Person designated by the Issuer as “Registrar” for the purpose of registering Securities and
transfers of Securities as herein provided, who shall initially be the Trustee. “Registrar” shall also mean or include each Person who is then a registrar hereunder, and, if at any time there is more than one such Person,
“Registrar” as used with respect to the Securities of any series shall mean the registrar with respect to the Securities of such series.
“Required Currency” shall have the meaning set forth in Section 11.12.
“Responsible Officer” when used with respect to the Trustee means any vice president (whether or not designated by numbers or words added before or after the title “Vice
5
President”), any assistant vice president, any trust officer, or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
“Security” or “Securities” (except as otherwise provided in
Section 7.4) has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Indebtedness”, when used with respect to the Subordinated Securities of any series, shall have the meaning established
pursuant to Subsection 2.3(9) with respect to the Subordinated Securities of such series.
“Senior Securities” means
Securities other than Subordinated Securities.
“Subordinated Securities” means Securities that by the terms
established pursuant to Subsection 2.3(9) are subordinated in right of payment to Senior Indebtedness of the Issuer.
“Subordination Provisions”, when used with respect to the Subordinated Securities of any series, shall have the meaning
established pursuant to Subsection 2.3(9) with respect to the Subordinated Securities of such series.
“Subsidiary,”
with respect to any Person, means (i) a corporation a majority of whose Voting Equity Interests is at the time, directly or indirectly, owned by such Person, by such Person and one or more Subsidiaries of such Person or by one or more
Subsidiaries of such Person, (ii) any other Person (other than a corporation) in which such Person, one or more Subsidiaries of such Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest, or (iii) a partnership in which such Person or a Subsidiary of such Person is, at the time, a general partner.
“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of
Article VI, shall also include any successor trustee. “Trustee” shall also 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 the Securities of such series.
“Unregistered
Security” means any Security other than a Registered Security.
“U.S. Government Obligations” shall have the
meaning set forth in Section 10.1(A).
“Voting Equity Interests” means Equity Interests which at the time are
entitled to vote in the election of, as applicable, directors, members or partners generally; provided, that, for the purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening of an event shall not be
considered Voting Equity Interests whether or not such event shall have happened.
6
“Yield to Maturity” means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY
.
The Securities of each series and the Coupons, if any, to be attached thereto shall be substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to but not set forth in a Board Resolution, an Officer’s Certificate detailing such
establishment) 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 imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons, if any.
SECTION 2.2 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION
.
The Trustee’s certificate of authentication on all Securities shall be in substantially the following form:
“This is one of the Securities referred to in the within-mentioned Indenture.
|
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
|
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|
By
|
|
|
7
If at any time there shall be an Authenticating Agent appointed with respect to any series
of Securities, then the Trustee’s Certificate of Authentication to be borne by the Securities of each such series shall be substantially as follows:
“This is one of the Securities referred to in the within-mentioned Indenture.
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as Authenticating Agent
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By:
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SECTION 2.3 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 one or more Board Resolutions (and to the extent established pursuant to but not set forth in a Board Resolution, in an Officer’s Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, including CUSIP numbers, which shall distinguish the Securities of the series from the Securities of all other series, and which may be part of a
series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the Securities of
the series that 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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the Foreign Currency or Foreign
Currencies in which the Securities of the series are denominated;
(4) the date or dates on which the principal
of the Securities of the series is payable or the method of determination thereof;
(5) the rate or rates at
which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable, the terms and conditions of any deferral of interest and the additional interest, if
any, thereon, the right, if any, of the Issuer to extend the interest payment periods and the duration of the extensions and (in the case of Registered Securities) the date or dates on which a record shall be taken for the determination of Holders
to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
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(6) the place or places where and the manner in which, the principal of and
any interest on Securities of the series shall be payable, if other than as provided in Section 3.2;
(7)
the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, or the date or dates on which, the price or prices at which and any terms and conditions upon which Securities of the
series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the
Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which or
the date or dates on which, and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if the Securities of such series are Subordinated Securities, the terms pursuant to which the Securities of such
series will be made subordinate in right of payment to Senior Indebtedness and the definition of such Senior Indebtedness with respect to such series (in the absence of an express statement to the effect that the Securities of such series are
subordinate in right of payment to all such Senior Indebtedness, the Securities of such series shall not be subordinate to Senior Indebtedness and shall not constitute Subordinated Securities); and, in the event that the Securities of such series
are Subordinated Securities, such Board Resolution, Officer’s Certificate or supplemental indenture, as the case may be, establishing the terms of such series shall expressly state which articles, sections or other provisions thereof constitute
the “Subordination Provisions” with respect to the Securities of such series;
(10) if other than
denominations of $2,000 and any integral multiple of $1,000 in excess thereof in the case of Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the denominations in which Securities of the series shall be issuable;
(11) the percentage of the principal amount at which the Securities will be issued, and, if other than the
principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof and the terms and conditions of any acceleration;
(12) if other than the coin, currency or currencies in which the Securities of the series are denominated, the coin,
currency or currencies in which payment of the principal of or interest on the Securities of such series shall be payable, including composite currencies or currency units;
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(13) if the principal of or interest on the Securities of the series are to
be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on the Securities of the series may be determined
with reference to an index or formula based on a coin, currency, composite currency or currency unit other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided in Section 2.8, the terms upon which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem the Securities of the series rather than pay such additional amounts;
(17) if the Securities of the series are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of any other agents with
respect to the Securities of such series;
(19) any deletion from, modification of or addition to the Events of
Default or covenants with respect to the Securities of such series;
(20) if the Securities of the series are
to be convertible into or exchangeable for any other security or property of the Issuer, including, without limitation, securities of another Person held by the Issuer or its Affiliates and, if so, the terms thereof; and
(21) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer’s Certificate referred to above or as set forth in any indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to
time without consent of any Holder, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution, such Officer’s Certificate or in any indenture supplemental hereto.
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SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES
.
The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the Trustee shall
thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with (in the case of subparagraphs (2),
(3) and (4) below only at or before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in conclusively relying upon, the
following enumerated documents unless and until such documents have been superseded or revoked:
(1) an Issuer
Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with respect to Securities of a series subject to a Periodic Offering,
(a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order and (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures;
(2) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in
Section 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) Either one or more Opinions of Counsel, or, at the option of the Issuer, a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
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(b) in the case of an underwritten offering, the terms of the Securities
have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution, an
Officer’s Certificate or a supplemental indenture in accordance with this Indenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture;
(c) such Securities and Coupons, if any, when executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer,
enforceable in accordance with their respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws affecting creditors’
rights generally, (ii) rights of acceleration, if any, and (iii) the availability of equitable remedies may be limited by equitable principles of general applicability and such counsel need express no opinion with regard to the
enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars; and
(d) all
conditions precedent to the issuance and authorization of the Securities have been complied with.
In rendering such opinions,
any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Any counsel may state that such opinions are limited to matters arising under the
laws of the State of New York and the Massachusetts Business Corporation Act. Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion
shall state that such counsel believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise.
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If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series
are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more
Registered Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or delivered or held pursuant to such Depositary’s instructions and
(iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES
. The Securities and each Coupon appertaining thereto, if any, shall be signed on behalf of
the Issuer by the chairman or vice chairman of its Board of Directors or its president, or any executive (senior or other), a vice president or its treasurer, which may, but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Issuer who shall have signed any of the Securities or Coupons, if any, shall cease to be
such officer before the Security or Coupon so signed (or the Security to which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Security or Coupon had not ceased to be such officer of the Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION
. Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized signatories, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory for any purpose until the certificate of authentication on the Security to which such Coupon appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
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SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST
. The Securities
of each series shall be issuable as Registered Securities or Unregistered Securities in denominations established as contemplated by Section 2.3 or, with respect to the Registered Securities of any series, if not so established, in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof. If denominations of Unregistered Securities of any series are not so established, such Securities shall be issuable in denominations of $1,000 and $5,000. The Securities
of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered Security
shall be dated as provided in the Board Resolution referred to in Section 2.3. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is registered at the close of business on
any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such
Registered Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding Registered Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date
of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of Registered Securities not less than 15 days preceding such subsequent record date. The term “record date” as used
with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series established as contemplated
by Section 2.3, or, if no such date is so established, if such interest payment date is the first day of a calendar month, the fifteenth day of the preceding calendar month or, if such interest payment date is the fifteenth day of a calendar
month, the first day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 REGISTRATION,
TRANSFER AND EXCHANGE
. (a) The Issuer will keep at each office or agency to be maintained for the purpose as provided in Section 3.2 for each series of Securities a register or registers in which, subject to such reasonable regulations
as the Issuer may prescribe, it will provide for the registration of Registered Securities of such series and the registration of transfer of Registered Securities of such series. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the
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transferee or transferees a new Registered Security or Registered Securities of the same series, maturity date, interest rate and original issue date in authorized denominations for a like
aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.
At the
option of the Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be exchanged for a Registered Security or Registered Securities of such series having authorized denominations
and an equal aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, at the option of the Holder thereof, except as otherwise specified pursuant to Section 2.3, Unregistered
Securities of any series may be exchanged for Registered Securities of such series having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer
that shall be maintained for such purpose in accordance with Section 3.2, with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such Unregistered Securities may be exchanged for Unregistered Securities of such series having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided. Registered Securities of any series shall
not be exchanged for Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and (2) (x) the Issuer has received from the IRS a ruling or (y) the Issuer has delivered to the Trustee an
Opinion of Counsel that since the date hereof, there has been a change in the applicable United States Federal income tax law, in either case to the effect that the inclusion of terms permitting Registered Securities to be exchanged for Unregistered
Securities would result in no United States Federal income tax effect adverse to the Issuer or to any Holder. 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 and Coupons, if any, surrendered upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed of by the Trustee in
accordance with its regular procedures, and the Trustee shall deliver a certificate of disposition thereof to the Issuer.
All
Registered Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed, by the Holder or his attorney duly authorized in writing.
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The Issuer or the Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Neither the Issuer nor the Registrar shall be required to exchange or register a transfer of (a) any Securities of any series for a
period of 15 days preceding the first mailing of notice of redemption of Securities of such series to be redeemed and ending at the close of business on the day such notice of redemption is mailed or (b) any Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, except for exchanges in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any
time the Depositary for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Registered Securities or if at any time the
Depositary for such Registered Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor Depositary
eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant to Section 2.3 that
such Registered Securities be represented by one or more Registered Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no longer be represented
by a Registered Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt of any Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such
Registered Securities, in exchange for such Registered Global Security or Securities.
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If specified by the Issuer pursuant to Section 2.3 with respect to Securities
represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive registered form on such
terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form without coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form without coupons issued in exchange for a Registered Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
or an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary, none of the Issuer, the Trustee or any agent
of the Issuer or the Trustee (any of which, other than the Issuer, shall conclusively rely on an Officer’s Certificate and an Opinion of Counsel) shall be required to exchange any Unregistered Security for a Registered Security if such exchange
would result in United States Federal income tax consequences adverse to the Issuer (such as, for example, the inability of the Issuer to deduct from its income, as computed for United States Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income tax laws. The Trustee shall have no responsibility for any actions taken or not taken by the Depositary. All Securities issued in definitive registered form, as described
herein, shall be in “registered form” for purposes of Section 163(f) of the Internal Revenue Code of 1986, as amended.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Registered Global
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Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depository.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES
. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall be mutilated, defaced, destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of
the same series, maturity date, interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case, the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence
to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof, and in the case of mutilation or defacement shall surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer or the Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as is required
to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities or
Coupons of such
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series duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and Coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DISPOSAL THEREOF
. All Securities and Coupons surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee or its agent for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee or its agent shall dispose of cancelled Securities and Coupons held by it in
accordance with its regular procedures and deliver a certificate of disposition to the Issuer upon the Issuer’s request in writing. If the Issuer or its agent shall acquire any of the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and until the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 TEMPORARY SECURITIES
. Pending the preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as
Registered Securities without coupons, or as Unregistered Securities with or without coupons attached thereto, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Registered Securities of such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at any agency maintained by the Issuer for such purpose as specified pursuant to
Section 2.3, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the same series having authorized denominations and, in the
case of Unregistered Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless
otherwise established pursuant to Section 2.3. The provisions of this Section are subject to any restrictions or limitations on the issue and delivery of temporary Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such series initially be issued in the form of a single
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global Unregistered Security to be delivered to a depositary or agency located outside the United States and the procedures pursuant to which definitive or global Unregistered Securities of such
series would be issued in exchange for such temporary global Unregistered Security).
SECTION 2.12 CUSIP NUMBERS
. The
Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; 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 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, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND
INTEREST
. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, if any, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective time or times and in the manner provided in such Securities and in the Coupons, if any, appertaining thereto and in this Indenture. The
interest on Securities with Coupons attached (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation and surrender of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. If any temporary Unregistered Security provides that interest thereon may be paid while such Security is in temporary form, the interest on any such temporary Unregistered Security (together with any
additional amounts payable pursuant to the terms of such Security) shall be paid, as to the installments of interest evidenced by Coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon of the payment of such interest, in each case subject to any restrictions that may be established pursuant to Section 2.3. The interest, if any, on Registered
Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing
checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the Securities register of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC
. So long as any Registered Securities are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in
Minneapolis, Minnesota, an office or agency where the Registered Securities of each series may be presented for payment, where the Securities of each series may be presented for exchange as is provided in this Indenture and, if applicable, pursuant
to Section 2.3 and where the Registered Securities of each series may be presented for registration of transfer as in this Indenture provided.
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The Issuer will maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of such series are listed) where the Unregistered Securities, if any, of each series and
Coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or Coupon at an agency of the Issuer within the United States, nor
will any payment be made by transfer to an account in, or by mail to an address in, the United States, unless pursuant to applicable United States laws and regulations then in effect such payment can be made without tax consequences adverse to the
Issuer. Notwithstanding the foregoing, payments in Dollars of Unregistered Securities of any series and Coupons appertaining thereto which are payable in Dollars may be made at an agency of the Issuer maintained in the Borough of Manhattan, The City
of New York if such payment in Dollars at each agency maintained by the Issuer outside the United States for payment on such Unregistered Securities is illegal or effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining thereto or this Indenture may be served.
The
Issuer will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency required by this Section to be located in Minneapolis,
Minnesota, or shall fail to give such notice of the location or for any change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the designated office of the Trustee.
The Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.3 and where the Registered Securities of that series may be presented
for registration of transfer as in this Indenture provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, that no such designation or rescission shall in any manner
relieve the Issuer of its obligations to maintain the agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE
. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
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SECTION 3.4 PAYING AGENTS
. Whenever the Issuer shall appoint a paying agent other
than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on
the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series, or Coupons appertaining thereto,
if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer (or by any
other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any
time during the continuance of the failure referred to in the foregoing clause (b).
The Issuer will, on or prior to each due
date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee in writing of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to Section 10.1, the Issuer may at any time, for the purpose
of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in
this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 COMPLIANCE CERTIFICATES
. The Issuer will furnish to the Trustee on or before April 30 in each year (beginning with April 30, 2014) an officer’s certificate (which need
not comply with Section 11.5) from the principal executive, financial or accounting officer of the Issuer stating that in the course of the performance by the signer of his or her duties as an officer of the Issuer he or she would normally have
knowledge of any default or non-compliance by the Issuer in the performance of any covenants or conditions contained in this Indenture, stating whether or not he or she has knowledge of any such default or non-compliance (without regard to notice
requirements or grace periods) and, if so, describing each such default or non-compliance of which the signer has knowledge and the nature thereof.
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The Issuer shall deliver to the Trustee, as soon as possible and in any event within five
days after the Issuer becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of
Default or default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.6 CORPORATE
EXISTENCE
. Subject to Article IX, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Issuer and
its Subsidiaries; provided, that the Issuer shall not be required to preserve any such right, license or franchise, if, in the judgment of the Issuer, the preservation thereof is no longer desirable in the conduct of the business of the Issuer and
its Subsidiaries taken as a whole and the loss thereof is not disadvantageous in any material respect to the Securityholders.
SECTION 3.7 LUXEMBOURG PUBLICATIONS
. In the event of the publication of any notice pursuant to Section 5.11, 6.11, 6.12,
8.2, 10.4, 11.4 or 12.2, the party making such publication in the Borough of Manhattan, The City of New York and London shall also, to the extent that notice is required to be given to Holders of Securities of any series by applicable Luxembourg law
or stock exchange regulation, as evidenced by an Officer’s Certificate delivered to such party, make a similar publication in Luxembourg.
SECTION 3.8 CALCULATION OF ORIGINAL ISSUE DISCOUNT
. The Issuer shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original
issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE
INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS
. If and so long as the Trustee shall not be the Registrar for the Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the payment of interest on such Registered Securities,
as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such information is furnished.
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SECTION 4.2 REPORTS BY THE ISSUER
. The Issuer covenants to file with the Trustee,
within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Issuer may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).
SECTION 4.3 REPORTS BY THE TRUSTEE
.
(a) 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. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date
of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when the Securities are listed on any stock exchange and of any delisting thereof.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT
. “Event of Default” with respect to
Securities of any series, wherever used herein, means any one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30
days; provided that, a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not constitute a failure to pay interest; or
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(b) default in the payment of all or any part of the principal or premium
(if any) on any of the Securities of such series as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of
the Issuer in the Securities of such series or contained in this Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such series) for a period of 90 days after the date
on which written notice specifying such failure, stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to
the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in aggregate principal amount of the Outstanding Securities of the series to which such covenant or agreement relates; or
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer for any substantial
part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Issuer or for any substantial part of its or their property, or make any general assignment for the benefit of creditors; or
(f) any other Event of Default provided in the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b), (c) or (f) occurs with respect to a series of Securities and is
continuing, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities,
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such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately due and payable.
If an Event of Default
described in clause (d) or (e) above occurs and is continuing, then the principal amount of all the Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The foregoing provisions are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be)
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided,
(A) the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
(i) all matured installments of interest upon all the Securities of such series (or all the Securities, as the case may
be); and
(ii) the principal of any and all Securities of such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration; and
(iii) interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in
the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and
(iv) all amounts payable to the Trustee pursuant to Section 6.6; and
(B) all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein,
then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of such series voting as a separate class (or of all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent thereon.
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For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT
. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall
be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series, and such
Coupons, for principal and interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and such other amount due the Trustee under Section 6.6 in respect of Securities of such series.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the
registered Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon the Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Securities, wherever situated, all the moneys adjudged or decreed to be payable.
In case
there shall be pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee,
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irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim
for amounts payable to the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities, or to the creditors or property of the Issuer or such other
obligor; and
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of the
Securities of any series in any election of a receiver, assignee, trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings, custodian or other person performing similar functions in
respect of any such proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official performing
similar functions in respect of any such proceedings is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to
pay to the Trustee its costs and expenses of collection and all other amounts due to it pursuant to Section 6.6.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any
series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of any of the Securities of such series or Coupons appertaining to such Securities or the production thereof in any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be awarded to the Trustee for ratable distribution to the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken, after payment of all sums due to the Trustee under Section 6.6 in respect of such Securities.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the
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Trustee shall be held to represent all the Holders of the Securities or Coupons appertaining to such Securities in respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities parties to any such proceedings.
SECTION 5.3
APPLICATION OF PROCEEDS
. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities and Coupons appertaining to such Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of
such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series of Securities in respect of which monies have been
collected, including all amounts due to the Trustee and each predecessor Trustee pursuant to this Indenture in respect to such series of Securities;
SECOND: If the Securities of such series are Subordinated Securities, to the payment of amounts then due and unpaid to the holders of Senior Indebtedness with respect to such series, to the extent
required pursuant to the Subordination Provisions established with respect to the Securities of such series pursuant to Section 2.3(9).
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities
of such series in default in the order of the maturity of the installments on such interest, with interest (to the extent that such interest has been collected by the Trustee and is permitted by applicable law) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or
preference;
FOURTH: In case the principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee and is permitted by applicable law) upon the overdue installations of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield
to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity
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over principal, or of any installment of interest over any other installment of interest or of any Security of such series over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FIFTH: To the payment of the remainder, if
any, to the Issuer or to such party as a court of competent jurisdiction shall direct.
SECTION 5.4 SUITS FOR
ENFORCEMENT
. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS
. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS
. No Holder of any Security of any series or of any Coupon appertaining
thereto shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture or such Security, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder or thereunder, unless (a) an Event of Default has occurred and is continuing and such Holder previously shall have given
to a Responsible Officer of the Trustee written notice of an Event of Default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided, and (b) the Holders of not less than 25% in aggregate principal
amount of the Securities of such affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding, and (d) no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such taker or Holder of Securities or Coupons
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appertaining to such Securities, or to obtain or seek to obtain priority over or preference to any other such taker or Holder or to enforce any right under this Indenture or any Security, except
in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series and Coupons appertaining to such Securities. For the protection and enforcement of the provisions of this Section, each
and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS
. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any Security or Coupon to receive payment of the principal of and interest on such Security or Coupon on or after the respective due dates expressed in such Security or Coupon
or the applicable redemption dates provided for in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT
. Except as provided in Section 5.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein. Every
power and remedy given by this Indenture, any Security or law to the Trustee or to the Holders of Securities or Coupons may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by
the Holders of Securities or Coupons.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES
. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each such series voting as a separate class) at the time Outstanding 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 by this Indenture; provided, that such direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided, further, that (subject to the provisions of Section 6.1) the Trustee shall have the right to decline to follow any such direction if (a) the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken; or (b) if the Trustee shall determine in good faith that the action or proceedings so directed would involve the Trustee in personal liability; or (c) if the Trustee in good faith
shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all affected series not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS
. Prior to the declaration of acceleration of the maturity of the Securities of any series as
provided in Section 5.1, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (voting as a single class) may on behalf of the Holders of all such Securities waive any past default or
Event of Default described in Section 5.1 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively, and such default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES
. The Trustee shall, within ninety days after the occurrence of a default with respect to the Securities of
any series, give notice of all defaults with respect to that series known to the Trustee (i) if any Unregistered Securities of that series are then Outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “default” for the purpose
of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided, that, except in the case of default in the payment of the principal of or interest on
any of the Securities of such series the Trustee shall be protected in withholding such notice if and so long as it in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS
. All parties to this Indenture agree, and each Holder
of any Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
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Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit
relating to or arising under clause (c) or (f) of Section 5.1 (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities then Outstanding and affected thereby, or in
the case of any suit relating to or arising under clause (c) or (f) (if the suit under clause (c) or (f) relates to all the Securities then Outstanding), or (d) or (e) of Section 5.1, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT
. Prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such
series, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to such series of Securities. In case an Event of Default with respect to the Securities of a series has occurred
and has not been cured or waived, the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture with respect to such series of Securities, 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.
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) prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of negligence and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such
statements, certificates
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or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, 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 pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this
Section 6.1 are in furtherance of and subject to Section 315 of the Trust Indenture Act.
SECTION 6.2 CERTAIN
RIGHTS OF THE TRUSTEE
. In furtherance of and subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officer’s Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an
Officer’s Certificate or Issuer Order (unless other evidence in respect thereof is specifically prescribed herein or in the terms established in respect of any series); and any resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee
may consult with counsel of its selection, and any advice or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the
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Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for
any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless (i) requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding (treated as one class) or
(ii) otherwise provided in the terms of any series of Securities pursuant to Section 2.3; provided, that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable security or indemnity satisfactory to it against
such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any negligence or willful misconduct on the part of any such agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact an Event of Default is received by the Trustee at the Corporate Trust Office and such notice references the Securities, the Issuer or this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) the Trustee may request that the Issuer 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;
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(k) 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; and
(l) the Trustee shall not be required to give any bond or surety in respect of the performance of
its powers and duties hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR
APPLICATION OF PROCEEDS THEREOF
. 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 Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC
. The
Trustee or any agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE
. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee 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 mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM
. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Issuer and the Trustee shall agree in writing (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its own negligence or willful misconduct. The Issuer also covenants to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any and
all loss, damage, claims, liability or expense, 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 costs and expenses
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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, except to the extent that such loss, damage, claim, liability or expense is determined to have been caused by its own negligence or willful misconduct. When the
Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(d) or Section 5.1(e), 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 bankruptcy, insolvency or other similar law. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee
and to pay or reimburse the Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO
RELY ON OFFICER’S CERTIFICATE, ETC
. Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 INDENTURES NOT
CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE
. The following indentures are hereby specifically described for the purposes of Section 310(b)(1) of the Trust Indenture Act: this Indenture with respect to series of Securities that
are of an equal priority and the indenture between the Issuer and Wells Fargo Bank, National Association, dated as of November 17, 2006, with respect to any series of securities thereunder that are of an equal priority to any series of the
Securities.
SECTION 6.9 QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS
. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act.
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE
. The Trustee
for each series of Securities hereunder shall at all times be a corporation or banking association organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, state or District of Columbia authority. If such corporation publishes reports
of condition at least annually,
37
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in
furtherance of and subject to Section 310(a) of the Trust Indenture Act.
SECTION 6.11 RESIGNATION AND REMOVAL;
APPOINTMENT OF SUCCESSOR TRUSTEE
. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and
(i) if any Unregistered Securities of a series affected are then Outstanding, by giving notice of such resignation to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee and (iii) by
mailing notice of such resignation to the Holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition
any court of competent jurisdiction at the expense of the Issuer for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act
with respect to any series of Securities after written request therefor by the Issuer or by any Securityholder; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.10 and Section 310(a) of the Trust Indenture Act and shall fail to resign after written request
therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem
proper and so prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in
aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 7.1 of the action in that regard taken by the Securityholders by notice in writing not less than 30 days prior to
the effective date of such removal.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 6.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.12.
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE
. Any successor trustee appointed as provided in
Section 6.11 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.6.
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If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and 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 under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 6.12 unless at
the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in this Section 6.12, the Issuer shall give notice thereof
(a) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of Registered Securities of each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.11. If the Issuer fails to give such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Issuer. The resigning Trustee shall have no responsibility or liability for any action or inaction of a successor
Trustee.
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE
. Any corporation or
banking association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or banking association succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided, that such corporation or banking association shall be qualified
under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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In case at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any such successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate of authentication shall have the full force which under this Indenture or the Securities of such series it is provided that the certificate of authentication of the Trustee shall have;
provided, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER
. The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent indicated.
SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT
. As long as any Securities of a series
remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating Agent”) which shall be authorized to act on behalf of the Trustee to authenticate
Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such series authenticated by such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee’s
Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $45,000,000 (determined as provided in Section 6.10 with respect to the Trustee) and subject to supervision or examination by Federal or state authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if
it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.
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Upon receiving such a notice of resignation or upon such a termination, or in case at any
time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.15 with respect to one or more series of Securities, the Trustee shall upon receipt of an Issuer Order appoint a successor
Authenticating Agent, and the Issuer shall provide notice of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for
such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN
BY SECURITYHOLDERS
. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by 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. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES
. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be reasonably satisfactory to the Trustee. The holding of
Registered Securities shall be proved by the Security register or by a certificate of the Registrar thereof.
SECTION 7.3
HOLDERS TO BE TREATED AS OWNERS
. The Issuer, the Trustee and any agent of the Issuer or the Trustee shall deem and treat the person in whose name any Security shall be registered upon the Security register and books of the Registrar for such
series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of such
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Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other
purposes, and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING
. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have
concurred in any request, demand, authorization, direction, notice, consent, waiver or other action by Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such action only Securities which a Responsible
Officer of the Trustee actually knows are 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 or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections
6.1 and 6.2, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN
. At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with
such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such
Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such action.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF SECURITYHOLDERS
. The Issuer, when authorized by a Board Resolution (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with
or pursuant to an Issuer Order), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series
any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer pursuant to Article IX;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities
or Coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) 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);
(e) to add one or more guarantees for the benefit of Holders of the Securities;
(f) subject to any limitations established pursuant to Section 2.3, to provide for the issuance of additional Securities of any series;
(g) to comply with the rules of any applicable Depositary;
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(h) 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;
(i) 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 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 (A)(i) Outstanding;
(j) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 10.1; provided that any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any material respect;
(k) to comply with the
rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded;
(l) to add to, change or eliminate any of the provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided that such action does
not adversely affect the rights or interests of any Holder of Securities in any material respect;
(m) to cure
any ambiguity, defect, omission or inconsistency or to correct or supplement any provision contained herein or in any supplemental indenture which may be ambiguous, defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem necessary or desirable, provided, that no such action shall adversely affect the interests of the Holders of the Securities or Coupons;
(n) to establish the forms or terms of Securities of any series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3;
(o) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.12; and
(p) to add to, change or eliminate any other
provision under this Indenture; provided that such addition, change or elimination pursuant to this clause (p) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
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The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS
.
(A) Except as set forth in paragraph (C) below, with the consent (evidenced as provided in Article VII) of the
Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series of Senior Securities affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a Board
Resolution (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force and effect at the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons appertaining to such
Securities.
(B) Except as set forth in paragraph (C) below, with the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series of Subordinated Securities affected by such supplemental indenture (voting as one class), the Issuer, when
authorized by a Board Resolution (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee
may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force and effect at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities.
(C) No such supplemental indenture shall (i) extend the final maturity
of any Security, or reduce the principal amount thereof, or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount), or premium thereon, if any, or interest thereon payable in any
46
coin or currency other than that provided in the Securities and Coupons or in accordance with the terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or in the case of Subordinated Securities of any series, modify any of the
Subordination Provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such Subordinated Securities, or alter the provisions of Section 11.11 or 11.12 or impair or affect the
right of any Securityholder to institute suit for the payment thereof when due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, or modify any provision of this Section 8.2(C), except to provide
that certain provisions of this Indenture cannot be modified or waived, in each case without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities of any series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.
(D) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such series, or of Coupons appertaining to such Securities, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer,
accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Securities as
aforesaid and other documents, if any, required by Section 8.4, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Issuer or, at the Issuer’s written request, the Trustee shall give notice thereof (i) to the Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security register, (ii) if any Unregistered Securities of a series affected thereby are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by first-class mail to such Holders at such addresses as were so
47
furnished to the Trustee and (iii) if any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders thereof, by publication of a notice thereof at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), and in each case such
notice shall set forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to give such notice or cause such notice to be given, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE
. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE
. The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be provided with an Officer’s Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article VIII complies with the applicable provisions of this Indenture and is the valid and binding obligation of the Issuer, enforceable against the Issuer in accordance
with its terms, subject to customary exceptions.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES
. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer shall so determine, subject to compliance with Section 2.4, new Securities of any series so modified as to conform to any modification of
this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding. Failure to make the appropriate notation or issue
such new Securities shall not affect the validity and effect of such supplemental indenture.
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ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY
CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
. The Issuer shall not consolidate with or merge into any other Person or transfer or lease its properties and assets substantially as an entirety to any Person, and the Issuer shall not permit any other
Person to consolidate with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing
corporation, or the successor corporation or Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which the properties and assets of the Issuer substantially as an entirety are transferred or leased
is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia, and if such entity is not a corporation, a co-obligor of the
Securities is a corporation organized or existing under any such laws, and such successor corporation or Person, including such co-obligor, if any, shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Issuer under the Securities and this Indenture; and
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as having been incurred by
the Issuer or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED
. The successor corporation formed by such consolidation or into which the Issuer is
merged or to which such transfer or lease is made 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 corporation had been named as the Issuer
herein, and thereafter (except in the case of a lease or transfer to another Person) the predecessor corporation shall be relieved of all obligations and covenants under the Indenture and the Securities and, in the event of such lease or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO
TRUSTEE
. The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be provided with an Opinion of Counsel as conclusive evidence that any such consolidation, merger, lease or transfer, and any such assumption, complies with the
provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION
10.1 SATISFACTION AND DISCHARGE OF INDENTURE
.
(A) If at any time (i) the Issuer shall have paid or caused to be paid
the principal of and interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons appertaining thereto (other than Securities of such series and Coupons appertaining thereto which have been destroyed, lost
49
or stolen and which have been replaced or paid as provided in Section 2.9) as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore authenticated and all unmatured Coupons appertaining thereto (other than any Securities of such series and Coupons appertaining thereto which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities where the exact amount (including the currency of payment) of principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (b) below, (a) all the Securities of such series and all unmatured Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (b) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust the entire amount in (i) cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.4),
(ii) in the case of any series of Securities the payments on which may only be made in Dollars, direct obligations of the United States of America, backed by its full faith and credit (“U.S. Government Obligations”), maturing as to
principal and interest at such times and in such amounts as will insure the availability of cash sufficient in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm to
pay at such maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal
firm expressed in a written certification thereof delivered to the Trustee, to pay (x) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable
and (y) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series; provided, that in the case of any redemption at a price or
premium to be calculated based off the Treasury rate or similar rate, the amount deposited with the Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal to the price or premium calculated as of the date
of the notice of redemption, with any deficit on the date of redemption only required to be deposited with the Trustee on or prior to the date of redemption; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Securities of such Series and of Coupons appertaining thereto pursuant to
Section 2.8, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities to the
extent to be exercised to make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the Holders of Securities of
such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, on
demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture; provided, that
the rights of Holders of the Securities and Coupons to receive amounts in respect of principal of and interest on the Securities and Coupons held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the
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Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities
of each series unless specifically otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (a) below, the Issuer
shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series and the Coupons appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the provisions of this
Indenture with respect to the Securities of such series and Coupons appertaining thereto shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and of Coupons appertaining
thereto pursuant to Section 2.8 (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of
Securities, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper instruments acknowledging
the same, if
(a) with reference to this provision the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or
(iii) a combination thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series; provided, that before such a deposit the Issuer may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article XII, which shall be given effect in applying the foregoing; and provided, further, that in the case of any redemption at a price or premium to be calculated based off the Treasury rate
or similar rate, the amount deposited with the Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal to the price or premium calculated as of the date of the notice of redemption, with any deficit on the
date of redemption only required to be deposited with the Trustee on or prior to the date of redemption;
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(b) no Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit;
(c) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received
from, or there has been published by, the IRS a ruling or (y) since the date hereof, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United
States Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(e) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(C) The
Issuer shall be released from its obligations under Sections 3.6 and 9.1 and unless otherwise provided for in the Board Resolution, Officer’s Certificate or Indenture supplemental hereto establishing such series of Securities, from all
covenants and other obligations referred to in Section 2.3(19) or 2.3(21) with respect to such series of Securities, and any Coupons appertaining thereto, outstanding on and after the date the conditions set forth below are satisfied
(hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any series, the Issuer may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under Section 5.1, but the remainder of this Indenture and such Securities and Coupons shall be unaffected thereby. The following shall be the conditions to application of this
subsection C of this Section 10.1:
(a) The Issuer has irrevocably 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 the Securities of such series and coupons appertaining thereto,
(i) cash in an amount, or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure
the availability of cash or (iii) a combination thereof,
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sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all Securities of such series and Coupons appertaining thereof and (B) any mandatory sinking fund payments on the day on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series; provided, that before such a deposit the Issuer may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance
with Article XII, which shall be given effect in applying the foregoing; and provided, further, that in the case of any redemption at a price or premium to be calculated based off the Treasury rate or similar rate, the amount deposited with the
Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal to the price or premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption only required to be
deposited with the Trustee on or prior to the date of redemption;
(b) No Event of Default or event which with
notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.9 and
for purposes of the Trust Indenture Act with respect to any securities of the Issuer;
(d) Such covenant
defeasance shall not result in a breach or violation of, or constitute a default under any agreement or instrument to which the Issuer is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange
under the Exchange Act to be delisted;
(f) The Issuer shall have delivered to the Trustee an Officer’s
Certificate and Opinion of Counsel to the effect that the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant
defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and
(g) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
. Subject to Section 10.4, all moneys deposited with the Trustee (or other trustee) pursuant to
Section 10.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series
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and of Coupons appertaining thereto for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent required by law.
SECTION 10.3 REPAYMENT OF
MONEYS HELD BY PAYING AGENT
. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS
. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and of any Coupons attached thereto and not applied but remaining unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such
series or such paying agent, and the Holder of the Securities of such series and of any Coupons appertaining thereto shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter
look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided, that the Trustee or such paying agent, before
being required to make any such repayment with respect to moneys deposited with it for any payment (a) in respect of Registered Securities of any series, shall at the expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in respect of Unregistered Securities of any series, shall at the expense of the Issuer cause to the published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London (and, if required by Section 3.7, once in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and that, after a date specified therein, which
shall not be less than thirty days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS
. The Issuer 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 10.1 or the principal or interest received in respect of such obligations.
SECTION 10.6 EFFECT ON SUBORDINATION PROVISIONS
. Unless otherwise expressly established pursuant to Section 2.3 with respect
to the Subordinated Securities of any series, the provisions of Section 11.13 hereof, insofar as they pertain to the Subordinated Securities of such series, and the Subordination Provisions established pursuant to Section 2.3(9) with
respect to such series, are hereby expressly made subject to the provisions for satisfaction and discharge and defeasance and covenant defeasance set forth in Section 10.1 hereof and, anything herein to the contrary
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notwithstanding, upon the effectiveness of such satisfaction and discharge and defeasance and covenant defeasance pursuant to Section 10.1 with respect to the Securities of such series, such
Securities shall thereupon cease to be so subordinated and shall no longer be subject to the provisions of Section 11.13 or the Subordination Provisions established pursuant to Section 2.3(9) with respect to such series and, without
limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such satisfaction and discharge, defeasance or covenant
defeasance, as the case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on, and mandatory sinking fund payments, if any, with respect to the Securities of such series as and when the
same shall become due and payable notwithstanding the provisions of Section 11.13 or such Subordination Provisions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY
. No recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities and the Coupons, if any, appertaining thereto by the Holders thereof and as part of the consideration for the issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS
. Nothing in this
Indenture, in the Securities or in the Coupons appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties thereto and their successors and the Holders of the Securities
or Coupons, if any and, in the case of the Subordinated Securities of any series, the holders of Senior Indebtedness with respect to such series, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities or Coupons, if any and, in the case of the Subordinated Securities of any series, the
holders of Senior Indebtedness with respect to such series.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE
. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
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SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS
. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities or Coupons, if any, to or on the Issuer may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to: EMC Corporation, 176 South Street, Hopkinton,
Massachusetts 01748, Attention: General Counsel, or by being e-mailed or faxed to: Attention: General Counsel, e-mail: general_counsel@emc.com, Fax No.: 508-497-8079. Any notice, direction, request or demand by the Issuer or any Holder of Securities
or Coupons, if any, to or upon the Trustee shall be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to: Wells Fargo Bank, National Association, 150 East 42
nd
Street, 40
th
floor, New York, New York 10017, Attention: Corporate Trust Service - Administrator for EMC Corporation, or by being e-mailed or faxed to: Attention: Corporate Trust Service - Administrator for EMC Corporation, e-mail:
raymond.dellicolli@wellsfargo.com, Fax No.: 917-260-1593.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security
register.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by e-mail,
pdf, facsimile transmission or other similar electronic methods; provided, however, that the Trustee shall have received an Officer’s Certificate (which need not comply with Section 314 of the Trust Indenture Act or Section 11.5
hereof) listing the names and titles of the persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which certificate shall be amended and replaced whenever a person is to be added or
deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee acts upon such instructions, the Trustee’s understanding of such instructions
shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions that the Trustee believes, in the absence of
negligence and willful misconduct, to be genuine and to have been sent by one of the persons named on the then most recent certificate referred to above notwithstanding that such instructions conflict or are inconsistent with a subsequent written
instruction. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit the 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 of electronic communications by third parties.
Where this Indenture provides for
notice to holders of Unregistered Securities, such notice shall be sufficiently given (unless otherwise expressly provided herein) by giving notice to such Holders (a) by publication of such notice at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.7, once in an Authorized Newspaper in Luxembourg), and (b) by mailing such notice to the Holders of
Unregistered Securities who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee.
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Notwithstanding any other provision of this Indenture or any Security of any series other
than a provision that expressly states that this paragraph is not applicable to the Securities of such series, when this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of Securities in
global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its designee) pursuant to the customary procedures of such Depositary.
In any case where notice to such 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 or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to the given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 11.5 OFFICER’S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN
. Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent 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 have been complied with, except that in the case of
any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
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
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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, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters or
information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based upon a certificate, report or opinion of or
representations by an accountant, firm of accountants, investment bank or appraisal firm, unless such officer or counsel, as the case may be, knows that the certificate, report or opinion of or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same 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.
Any certificate, report or opinion of any independent firm of public accountants filed
with and directed to the Trustee shall contain a statement that such firm is independent.
SECTION 11.6 PAYMENTS DUE ON
SATURDAYS, SUNDAYS AND HOLIDAYS
. If the date of maturity of interest on or principal of the Securities of any series or any Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with duties imposed by, or with another provision (an “incorporated provision”) included in this Indenture by operation of Sections
310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
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SECTION 11.8 NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL
.
THIS INDENTURE AND
EACH SECURITY AND
COUPON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.9 COUNTERPARTS
. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 11.10 EFFECT OF HEADINGS
. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY
. Unless otherwise specified in an Officer’s Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series
or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a Foreign Currency, then the principal amount of Securities of such series which shall
be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the “Market Exchange Rate”. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York as of the most recent available date. If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major banks in The City of New York or
in the country of issue of the currency in question, which for purposes of the euro shall be any member state of the European Union that has adopted the euro, as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders.
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SECTION 11.12 JUDGMENT CURRENCY
. The Issuer agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday
or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
SECTION 11.13 AGREEMENT TO SUBORDINATE
. The Issuer, for itself, its successors and assigns, covenants and agrees, and each Holder of Subordinated Securities of any series by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on, and mandatory sinking fund payments, if any, in respect of each and all of the Subordinated Securities of such series shall be
expressly subordinated, to the extent and in the manner provided in the Subordination Provisions established with respect to the Subordinated Securities of such series pursuant to Section 2.3(9) hereof, in right of payment to the prior payment
in full of all Senior Indebtedness with respect to such series.
SECTION 11.14 FORCE MAJEURE
. In no event shall the
Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 11.15 U.S.A. PATRIOT ACT
. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot
Act, the Trustee, like all
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financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY
OF ARTICLE
. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL
REDEMPTIONS
. Notice of redemption to the Holders of Registered Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the registry books (in the case of Securities held in book-entry form, by
electronic transmission), except that redemption notices may be delivered more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of any series of Securities pursuant to
Section 10.1. Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in part, who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act shall be
given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Issuer, the Trustee shall make such information available to the Issuer for such purpose). Notice of redemption to all other Holders of Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in London (and, if required by Section 3.7, in an Authorized Newspaper in Luxembourg), in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of such Security of
such series.
The notice of redemption to each such Holder shall identify the Securities to be redeemed (including CUSIP
number(s)) and specify the aggregate principal amount of Securities of such series to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory
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or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption to Holders of Securities of the series shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer
or, at the Issuer’s request at least five (5) Business Days prior to the date the notice must be mailed to Holders (unless the Trustee otherwise agrees to a shorter period), by the Trustee in the name and at the expense of the Issuer.
On or before 11:00 a.m., New York City time, on the redemption date specified in the notice of redemption given as provided
in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.4) an amount of money sufficient
to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. The Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption, or such shorter period as shall be acceptable to the Trustee, an Officer’s Certificate stating the aggregate principal amount of Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officer’s Certificate stating that such
restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee shall select,
in such manner as it shall deemed appropriate and fair in accordance with the procedures of the Depositary, in its sole discretion, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION
. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become
due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of
such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any, appertaining thereto shall
be void, and, except as provided in Sections 6.5 and 10.4, such Securities shall cease from and after the date
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fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the
redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all Coupons, if any, appertaining thereto maturing after
the date fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that
payment of interest becoming due on or prior to the date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holder of such Registered Securities registered as such on the relevant record date, subject to the terms and provisions of Section 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION
. Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS
. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of the Securities of
any series is herein referred to as an “optional sinking fund payment.” The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee
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Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series
(not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officer’s Certificate (which need not contain the statements required
by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such credit, (b) stating
that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s
Certificate shall be irrevocable and upon its receipt by the Trustee, the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable
election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as
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nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such Officer’s Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given
in substantially the manner provided in Section 12.2 (and with the effect provided in Section 12.3) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for
such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default be deemed to have been collected under Article V and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.
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EMC CORPORATION
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By:
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/s/ Denis Cashman
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Name:
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Denis Cashman
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Title:
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Chief Accounting Officer and Chief Operating Officer, Finance
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Raymond Delli Colli
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Name:
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Raymond Delli Colli
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Title:
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Vice President
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[
Signature Page to Indenture
]
Exhibit 4.2
OFFICER’S CERTIFICATE
The undersigned, EMC Corporation, a
Massachusetts corporation (the “Company”), hereby certifies through Denis Cashman, its Chief Accounting Officer and Chief Operating Officer, Finance, pursuant to Sections 2.1, 2.3 and 11.5 of the Indenture, dated as of June 6, 2013
(the “Indenture”), by and between the Company, as Issuer, and Wells Fargo Bank, National Association, as trustee, as follows:
1. The form and terms of the 1.875% Notes due 2018 (the “2018 Notes”), as set forth on
Annex A
attached hereto, the form and terms of the 2.650% Notes due 2020 (the “2020
Notes”), as set forth on
Annex B
attached hereto, and the form and terms of the 3.375% Notes due 2023 (the “2023 Notes”), as set forth on
Annex C
attached hereto, have been established pursuant to Sections 2.1 and 2.3 of
the Indenture and comply with the Indenture.
2. The undersigned has read the Indenture.
3. The statements made in this certificate are based upon an examination of the 2018 Notes, the 2020 Notes and the 2023 Notes under the
Indenture, upon an examination of and familiarity with the Indenture, upon my general knowledge of and familiarity with the operations of the Company and upon the performance of my duties as an officer of the Company.
4. In the opinion of the undersigned, he has made such examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not the covenants and conditions provided for in the Indenture relating to the issuance and authentication of each of the 2018 Notes, the 2020 Notes and the 2023 Notes have been complied with.
5. In the opinion of the undersigned, with respect to the foregoing, the covenants and conditions provided for in the Indenture relating
to the issuance and authentication of each of the 2018 Notes, the 2020 Notes and the 2023 Notes have been complied with.
Capitalized terms used herein without definition have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized officer as of this 6
th
day
of June, 2013.
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EMC CORPORATION
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By:
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/s/ Denis Cashman
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Name:
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Denis Cashman
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Title:
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Chief Accounting Officer and Chief Operating Officer, Finance
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[
Signature Page to Officer’s Certificate under the Indenture
]
ANNEX A
Pursuant to Section 2.3 of the Indenture, dated as of June 6, 2013 (the “Indenture”), between EMC Corporation, a Massachusetts corporation (the “Issuer”), and Wells Fargo
Bank, National Association, as trustee (the “Trustee”), the terms of a series of securities to be issued pursuant to the Indenture are as follows:
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1.
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Designation
. The designation of the securities is “1.875% Notes due 2018” (the “2018 Notes”).
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2.
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Initial Aggregate Principal Amount
. The 2018 Notes shall be limited in initial aggregate principal amount to $2,500,000,000 (except for 2018 Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other 2018 Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).
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3.
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Currency Denomination
. The 2018 Notes shall be denominated in Dollars.
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4.
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Maturity
. The date on which the principal of the 2018 Notes is payable is June 1, 2018.
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5.
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Rate of Interest; Interest Payment Date; Regular Record Dates
. Each 2018 Note shall bear interest from June 6, 2013 at 1.875% per annum until the
principal thereof is paid. Such interest shall be payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2013, to the persons in whose names the 2018 Notes are registered at the close of
business on the immediately preceding May 15 and November 15, respectively. Interest on the 2018 Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from June 6, 2013.
Interest on the 2018 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which principal, premium, if any, or interest is payable on the 2018 Notes is not a Business Day, then
payment of the principal, premium, if any, or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).
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6.
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Place of Payment
. Principal of, premium, if any, and interest on the 2018 Notes shall be payable, and the transfer of the 2018 Notes shall be registrable, at the
office or agency of the Issuer to be maintained for such purpose in Minneapolis, Minnesota, except that, at the option of the Issuer, interest may be paid by mailing a check to the address of the person entitled thereto as it appears on the 2018
Notes register;
provided, however
, that while any 2018 Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the 2018 Notes may be made by wire transfer to the account of the
Depositary or its nominee.
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7.
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Optional Redemption
. The 2018 Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash,
at a redemption price equal to the greater of (i) 100% of their principal amount and (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments of principal and interest
thereon (not
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including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the principal amount of any 2018 Note remaining outstanding after a
redemption in part shall be $2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on 2018 Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be
payable on the interest payment date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the 2018 Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed
for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of the 2018 Notes pursuant to Section 10.1 of the
Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the 2018 Notes or portions thereof called for redemption. If less than all of the 2018 Notes are to be
redeemed, the 2018 Notes to be redeemed will be selected by the Trustee by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the Depositary.
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“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the 2018 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term
of the 2018 Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by
the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC
and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary
Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption
date.
A-2
“Treasury Rate” means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption
date.
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8.
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Mandatory Redemption
. The 2018 Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.
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9.
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Denominations
. The 2018 Notes shall be issued initially in minimum denominations of $2,000 and shall be issued in integral multiples of $1,000 in excess thereof.
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10.
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Amount Payable Upon Acceleration
. The principal of the 2018 Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the
Indenture.
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11.
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Payment Currency
. Principal and interest on the 2018 Notes shall be payable in Dollars.
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12.
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Payment Currency – Election
. The principal of and interest on the 2018 Notes shall not be payable in a currency other than Dollars.
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13.
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Payment Currency – Index
. The principal of and interest on the 2018 Notes shall not be determined with reference to an index based on a coin or currency.
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14.
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Registered Securities
. The 2018 Notes shall be issued only as Registered Securities. The 2018 Notes shall be issuable as Registered Global Securities.
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15.
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Additional Amounts
. The Issuer shall not pay additional amounts on the 2018 Notes held by a Person that is not a U.S. Person in respect of taxes or similar
charges withheld or deducted.
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16.
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Definitive Certificates
. Section 2.8 of the Indenture will govern the transferability of the 2018 Notes in definitive form.
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17.
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Registrar; Paying Agent; Depositary
. The Trustee shall initially serve as the registrar and the paying agent for the 2018 Notes. The Depository Trust Company
shall initially serve as the Depositary for the Registered Global Security representing the 2018 Notes.
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18.
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Events of Default; Covenants
. There shall be no deletions from or modifications or additions to the Events of Default set forth in Section 5.1 of the
Indenture with respect to the 2018 Notes. There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the 2018 Notes:
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Limitation on Liens
. The Issuer covenants that, so long as any of the 2018 Notes remain outstanding, it shall not, nor shall it permit any
domestic wholly owned subsidiary to, create or incur any mortgage, pledge, security interest or lien (each, a “Lien”) on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without
effectively providing that the 2018 Notes shall be secured by a lien ranking equal to and ratably with (or, at the Issuer’s option, senior to) such secured Indebtedness until such time as such Indebtedness is no longer secured by such Lien,
except that the foregoing restriction shall not apply to:
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(a)
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Liens existing on the date hereof;
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A-3
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(b)
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Liens created or incurred after the closing date of the offering of the 2018 Notes created in favor of the holders of the 2018 Notes;
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(c)
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Liens in favor of the Issuer or one of its domestic wholly owned subsidiaries;
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(d)
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(i) Liens given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of financing)
the payment of all or any portion of the purchase price for the acquisition (including acquisition through merger or consolidation or the acquisition of a Person directly or indirectly owning such property) of any replacement for the Principal
Property, including capital lease or purchase money transactions in connection with any such acquisition, or all or any portion of the cost of refurbishment, improvement, expansion, renovation, development or construction of any Principal Property;
provided that with respect to this clause (i), the Liens shall be given prior to, at the time of or within 12 months after such acquisition, or completion of such refurbishment, improvement, expansion, renovation, development or construction, or the
full operation of such Principal Property, whichever is latest, and shall attach solely to such Principal Property (including any refurbishments, improvements, expansions, renovations, development or construction thereof or then or thereafter placed
thereon) and any proceeds thereof; and (ii) Liens existing on all or any portion of any replacement for the Principal Property at the time of acquisition thereof (including acquisition through merger or consolidation or the acquisition of a
Person then directly or indirectly owning such property) whether or not such existing Liens were given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of
financing) the payment of the purchase price of such property;
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(e)
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Liens on any Principal Property in favor of the United States of America or any state thereof, or in favor of any other country, or any political subdivision,
department, agency or instrumentality thereof to secure progress or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed for the purpose of financing all or any portion of the cost of acquiring,
refurbishing, improving, expanding, renovating, developing or constructing such Principal Property, including Liens incurred in connection with pollution control, industrial revenue or similar financing;
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(f)
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pledges, Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or to secure public or statutory obligations of the Issuer or any of its
domestic wholly owned subsidiaries, or in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or in litigation or other proceedings such as, but not limited to, interpleader proceedings, and other similar
pledges, Liens or deposits made or incurred in the ordinary course of business;
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A-4
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(g)
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Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including Lens arising out of
judgments or awards against the Issuer or any of its domestic wholly owned subsidiaries with respect to which the Issuer or such domestic wholly owned subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time
to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens incurred by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which the Issuer or such domestic wholly owned subsidiary is a party;
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(h)
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Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other Liens or charges incidental to the conduct of the business of the Issuer or any of its domestic wholly owned subsidiaries or the
ownership of the assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and which do not, in the opinion of the Issuer, materially impair the use of such assets in the operation
of the business of the Issuer or such domestic wholly owned subsidiary or the value of such assets for the purposes thereof;
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(i)
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Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; and
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(j)
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Liens which are incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or
replacements) any Lien, or any Indebtedness which is secured by any Lien (including any premium required to be paid and costs and expenses incurred in connection with such extensions, renewals, substitutions, refinancings, refundings or
replacements), permitted to be created or incurred under the Indenture.
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Notwithstanding the above, the Issuer
or any of its domestic wholly owned subsidiaries may, without equally and ratably securing the 2018 Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect
thereto, Aggregate Debt does not exceed the greater of (i) 20% of the Issuer’s Consolidated Net Worth on a consolidated basis calculated as of the date of the creation or incurrence of the Lien and (ii) 20% of the Issuer’s
Consolidated Net Worth on a consolidated basis calculated as of the date of the issuance of the 2018 Notes.
“Aggregate
Debt” means, as of the date of determination, the aggregate principal amount of the Issuer’s and its domestic wholly owned subsidiaries’ Indebtedness incurred after the closing date of the offering of the 2018 Notes and secured by
Liens not permitted by the first paragraph under “—Limitation on Liens” above.
“Consolidated Net
Worth” means, as of any date of determination, shareholders’ equity as reflected on the Issuer’s most recent consolidated balance sheet prepared in accordance with GAAP.
“GAAP” means accounting principles generally accepted in the United States of America, which are in effect as of the date of
application thereof.
A-5
“Indebtedness” of any specified Person means any indebtedness in respect of
borrowed money.
“Person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Principal Property” means the Issuer’s (1) principal offices in Hopkinton, Massachusetts or any replacement thereof and (2) each of the Issuer’s data center facilities and
manufacturing facilities unless, with respect to clause (2), the Issuer’s board of directors (which term, as defined in the indenture, includes committees thereof) has determined in good faith that such center or facility is not of material
importance to the total business conducted by the Issuer and its wholly owned subsidiaries, taken as a whole.
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19.
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Conversion and Exchange
. The 2018 Notes shall not be convertible into or exchangeable for any other security.
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20.
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Additional Issues
. The Issuer may, without notice to or the consent of the holders of the 2018 Notes, create and issue additional notes with the same terms as
the 2018 Notes in all respects, except for the issue date, the public offering price and, under certain circumstances, the first interest payment date. Such additional notes shall be consolidated and form a single series with the 2018 Notes;
provided that if such additional notes are not fungible with the 2018 Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number. No additional 2018 Notes may be issued if an event of default has occurred and
is continuing with respect to such series of 2018 Notes.
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21.
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Other Terms
. The 2018 Notes shall have the other terms and shall be substantially in the form set forth in the form of the 2018 Notes attached hereto as Annex
A-1. In case of any conflict between this Annex A and the form of the 2018 Notes, the form of the 2018 Notes shall control.
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Capitalized terms used but not otherwise defined in this Annex A shall have the respective meanings ascribed to such terms in the Indenture.
A-6
ANNEX A-1
[FORM OF 2018 NOTE]
THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
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No. R – A1
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CUSIP NO. 268648 AP7
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ISIN NO. US268648AP77
EMC CORPORATION
1.875% NOTES DUE 2018
EMC Corporation, a Massachusetts corporation (the “Issuer,” which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [
] Dollars ($[
]) on June 1, 2018 and to pay
interest on said principal sum from June 6, 2013, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on June 1 and December 1 (each such date, an “Interest
Payment Date”) of each year commencing on December 1, 2013, at the rate of 1.875% per annum until the principal hereof shall have become due and payable.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which the principal or
interest payable on this Note is not a Business Day, then payment of principal or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of such delay). The
interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note is registered at the close
of business on the record date for such interest installment, which shall be the close of business on the immediately preceding May 15 and November 15 prior to such Interest Payment Date, as applicable. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the registered holders on such record date and may be paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which
shall be not less than five Business Days prior to the date of payment of such defaulted interest), notice whereof shall be given by mail by or on behalf of the Issuer to the registered holders of Notes not less than 15 days preceding such
subsequent record date, all as more fully provided in the Indenture. The principal of and the interest on this Note shall be payable at the office or agency of the Issuer maintained for that purpose in any coin or currency of the United States of
America that at the
A-1-1
time of payment is legal tender for payment of public and private debts;
provided
,
however,
that payment of interest may be made at the option of the Issuer by check mailed to the
person entitled thereto at such address as shall appear in the registry books of the Issuer;
provided
,
further
, that for so long as this Note is represented by a Registered Global Security, payment of principal, premium, if any, or
interest on this Note may be made by wire transfer to the account of the Depositary or its nominee.
Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used in this Note which are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
The provisions of this Note are continued on the
reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or
in facsimile.
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EMC CORPORATION
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Indenture.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
as Trustee
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By:
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Authorized Signatory
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Dated:
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A-1-3
[FORM OF REVERSE SIDE OF NOTE]
This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer designated as its 1.875% Notes due
2018 (the “Notes”). The Securities are all issued or to be issued under and pursuant to an Indenture, dated as of June 6, 2013 (the “Indenture”), duly executed and delivered between the Issuer and Wells Fargo Bank, National
Association as trustee with respect to the Notes (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Issuer, the Trustee and
the holders of the Securities and the terms upon which the Notes are to be authenticated and delivered. The terms of individual series of Securities may vary with respect to interest rate or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
The Notes are issuable only as Registered Securities in minimum denominations
of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes as requested by the holder
surrendering the same.
Except as set forth below, this Note is not redeemable and is not entitled to the benefit of a sinking
fund or any analogous provision.
The Notes may be redeemed, in whole at any time or in part from time to time, at the option
of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of their principal amount and (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments
of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the principal amount of any Note remaining outstanding after a redemption in part shall be
$2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment
date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption
notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of the Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of
the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee
by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the Depositary.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of
the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations.
A-1-4
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury
Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption
date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Senior Securities or Subordinated Securities, as the case may be, of all series issued under such Indenture then outstanding and
affected (each voting as one class), to add any provisions to, or change in any manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the rights of the holders of the Securities or Coupons so affected;
provided
that the Issuer and the Trustee, may not, without the consent of the holder of each Outstanding Security affected thereby, (i) extend the final maturity of the principal of any Security or reduce the principal amount
thereof or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof or change the currency in which the principal thereof (other than as otherwise may be
provided with respect to such series), premium, if any, or interest thereon is payable or reduce the amount of the principal of any Original Issue Discount Security that is payable upon acceleration or provable in bankruptcy, or in the case of
Subordinated Securities of any series, modify any of the subordination provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such Subordinated Securities, or alter certain
provisions of the Indenture relating to Securities not denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of any Securityholder to institute suit for the enforcement of any payment thereof when due or,
if the Securities provide therefor, any right of repayment at the option of the Securityholder or (ii) reduce the aforesaid percentage in principal amount of Securities of any series issued under the Indenture, the consent of the holders of
which is required for any such modification. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, the holders of a majority in aggregate principal amount
A-1-5
Outstanding of the Securities of each such series, each such series voting as a separate class (or, of all Securities, as the case may be voting as a single class) may under certain circumstances
waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul a declaration of default and its consequences, but no such waiver or rescission and annulment shall extend to or
affect any subsequent default or shall impair any right consequent thereto.
No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may
be registered on the registry books of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer for such purpose in Minneapolis, Minnesota, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder hereof or by its attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or transferees.
No service charge shall be made
for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
A-1-6
[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED
GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Registered Global Securities
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Date
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Principal Amount of Notes by which this
Registered Global Security is to be
Reduced or
Increased, and Reason for
Reduction or Increase
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Remaining Principal Amount of this
Registered Global Security
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Notation Made By
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A-1-7
ANNEX B
Pursuant to Section 2.3 of the Indenture, dated as of June 6, 2013 (the “Indenture”), between EMC Corporation, a Massachusetts corporation (the “Issuer”), and Wells Fargo
Bank, National Association, as trustee (the “Trustee”), the terms of a series of securities to be issued pursuant to the Indenture are as follows:
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1.
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Designation
. The designation of the securities is “2.650% Notes due 2020” (the “2020 Notes”).
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2.
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Initial Aggregate Principal Amount
. The 2020 Notes shall be limited in initial aggregate principal amount to $2,000,000,000 (except for 2020 Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other 2020 Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).
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3.
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Currency Denomination
. The 2020 Notes shall be denominated in Dollars.
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4.
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Maturity
. The date on which the principal of the 2020 Notes is payable is June 1, 2020.
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5.
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Rate of Interest; Interest Payment Date; Regular Record Dates
. Each 2020 Note shall bear interest from June 6, 2013 at 2.650% per annum until the
principal thereof is paid. Such interest shall be payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2013, to the persons in whose names the 2020 Notes are registered at the close of
business on the immediately preceding May 15 and November 15, respectively. Interest on the 2020 Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from June 6, 2013.
Interest on the 2020 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which principal, premium, if any, or interest is payable on the 2020 Notes is not a Business Day, then
payment of the principal, premium, if any, or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).
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6.
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Place of Payment
. Principal of, premium, if any, and interest on the 2020 Notes shall be payable, and the transfer of the 2020 Notes shall be registrable, at the
office or agency of the Issuer to be maintained for such purpose in Minneapolis, Minnesota, except that, at the option of the Issuer, interest may be paid by mailing a check to the address of the person entitled thereto as it appears on the 2020
Notes register;
provided, however
, that while any 2020 Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the 2020 Notes may be made by wire transfer to the account of the
Depositary or its nominee.
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7.
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Optional Redemption
. The 2020 Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash,
at a redemption price equal to the greater of (i) 100% of their principal amount and (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments of principal and interest
thereon (not
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B-1
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including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the principal amount of any 2020 Note remaining outstanding after a
redemption in part shall be $2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on 2020 Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be
payable on the interest payment date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the 2020 Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed
for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of the 2020 Notes pursuant to Section 10.1 of the
Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the 2020 Notes or portions thereof called for redemption. If less than all of the 2020 Notes are to be
redeemed, the 2020 Notes to be redeemed will be selected by the Trustee by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the Depositary.
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“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the 2020 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term
of the 2020 Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by
the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC
and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary
Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption
date.
B-2
“Treasury Rate” means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption
date.
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8.
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Mandatory Redemption
. The 2020 Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.
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9.
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Denominations
. The 2020 Notes shall be issued initially in minimum denominations of $2,000 and shall be issued in integral multiples of $1,000 in excess thereof.
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10.
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Amount Payable Upon Acceleration
. The principal of the 2020 Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the
Indenture.
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11.
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Payment Currency
. Principal and interest on the 2020 Notes shall be payable in Dollars.
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12.
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Payment Currency – Election
. The principal of and interest on the 2020 Notes shall not be payable in a currency other than Dollars.
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13.
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Payment Currency – Index
. The principal of and interest on the 2020 Notes shall not be determined with reference to an index based on a coin or currency.
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14.
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Registered Securities
. The 2020 Notes shall be issued only as Registered Securities. The 2020 Notes shall be issuable as Registered Global Securities.
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15.
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Additional Amounts
. The Issuer shall not pay additional amounts on the 2020 Notes held by a Person that is not a U.S. Person in respect of taxes or similar
charges withheld or deducted.
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16.
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Definitive Certificates
. Section 2.8 of the Indenture will govern the transferability of the 2020 Notes in definitive form.
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17.
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Registrar; Paying Agent; Depositary
. The Trustee shall initially serve as the registrar and the paying agent for the 2020 Notes. The Depository Trust Company
shall initially serve as the Depositary for the Registered Global Security representing the 2020 Notes.
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18.
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Events of Default; Covenants
. There shall be no deletions from or modifications or additions to the Events of Default set forth in Section 5.1 of the
Indenture with respect to the 2020 Notes. There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the 2020 Notes:
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Limitation on Liens
. The Issuer covenants that, so long as any of the 2020 Notes remain outstanding, it shall not, nor shall it permit any
domestic wholly owned subsidiary to, create or incur any mortgage, pledge, security interest or lien (each, a “Lien”) on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without
effectively providing that the 2020 Notes shall be secured by a lien ranking equal to and ratably with (or, at the Issuer’s option, senior to) such secured Indebtedness until such time as such Indebtedness is no longer secured by such Lien,
except that the foregoing restriction shall not apply to:
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(a)
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Liens existing on the date hereof;
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B-3
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(b)
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Liens created or incurred after the closing date of the offering of the 2020 Notes created in favor of the holders of the 2020 Notes;
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(c)
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Liens in favor of the Issuer or one of its domestic wholly owned subsidiaries;
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(d)
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(i) Liens given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of financing)
the payment of all or any portion of the purchase price for the acquisition (including acquisition through merger or consolidation or the acquisition of a Person directly or indirectly owning such property) of any replacement for the Principal
Property, including capital lease or purchase money transactions in connection with any such acquisition, or all or any portion of the cost of refurbishment, improvement, expansion, renovation, development or construction of any Principal Property;
provided that with respect to this clause (i), the Liens shall be given prior to, at the time of or within 12 months after such acquisition, or completion of such refurbishment, improvement, expansion, renovation, development or construction, or the
full operation of such Principal Property, whichever is latest, and shall attach solely to such Principal Property (including any refurbishments, improvements, expansions, renovations, development or construction thereof or then or thereafter placed
thereon) and any proceeds thereof; and (ii) Liens existing on all or any portion of any replacement for the Principal Property at the time of acquisition thereof (including acquisition through merger or consolidation or the acquisition of a
Person then directly or indirectly owning such property) whether or not such existing Liens were given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of
financing) the payment of the purchase price of such property;
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(e)
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Liens on any Principal Property in favor of the United States of America or any state thereof, or in favor of any other country, or any political subdivision,
department, agency or instrumentality thereof to secure progress or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed for the purpose of financing all or any portion of the cost of acquiring,
refurbishing, improving, expanding, renovating, developing or constructing such Principal Property, including Liens incurred in connection with pollution control, industrial revenue or similar financing;
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(f)
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pledges, Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or to secure public or statutory obligations of the Issuer or any of its
domestic wholly owned subsidiaries, or in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or in litigation or other proceedings such as, but not limited to, interpleader proceedings, and other similar
pledges, Liens or deposits made or incurred in the ordinary course of business;
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B-4
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(g)
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Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including Lens arising out of
judgments or awards against the Issuer or any of its domestic wholly owned subsidiaries with respect to which the Issuer or such domestic wholly owned subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time
to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens incurred by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which the Issuer or such domestic wholly owned subsidiary is a party;
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(h)
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Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other Liens or charges incidental to the conduct of the business of the Issuer or any of its domestic wholly owned subsidiaries or the
ownership of the assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and which do not, in the opinion of the Issuer, materially impair the use of such assets in the operation
of the business of the Issuer or such domestic wholly owned subsidiary or the value of such assets for the purposes thereof;
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(i)
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Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; and
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(j)
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Liens which are incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or
replacements) any Lien, or any Indebtedness which is secured by any Lien (including any premium required to be paid and costs and expenses incurred in connection with such extensions, renewals, substitutions, refinancings, refundings or
replacements), permitted to be created or incurred under the Indenture.
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Notwithstanding the above, the Issuer
or any of its domestic wholly owned subsidiaries may, without equally and ratably securing the 2020 Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect
thereto, Aggregate Debt does not exceed the greater of (i) 20% of the Issuer’s Consolidated Net Worth on a consolidated basis calculated as of the date of the creation or incurrence of the Lien and (ii) 20% of the Issuer’s
Consolidated Net Worth on a consolidated basis calculated as of the date of the issuance of the 2020 Notes.
“Aggregate
Debt” means, as of the date of determination, the aggregate principal amount of the Issuer’s and its domestic wholly owned subsidiaries’ Indebtedness incurred after the closing date of the offering of the 2020 Notes and secured by
Liens not permitted by the first paragraph under “—Limitation on Liens” above.
“Consolidated Net
Worth” means, as of any date of determination, shareholders’ equity as reflected on the Issuer’s most recent consolidated balance sheet prepared in accordance with GAAP.
“GAAP” means accounting principles generally accepted in the United States of America, which are in effect as of the date of
application thereof.
B-5
“Indebtedness” of any specified Person means any indebtedness in respect of
borrowed money.
“Person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Principal Property” means the Issuer’s (1) principal offices in Hopkinton, Massachusetts or any replacement thereof and (2) each of the Issuer’s data center facilities and
manufacturing facilities unless, with respect to clause (2), the Issuer’s board of directors (which term, as defined in the indenture, includes committees thereof) has determined in good faith that such center or facility is not of material
importance to the total business conducted by the Issuer and its wholly owned subsidiaries, taken as a whole.
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19.
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Conversion and Exchange
. The 2020 Notes shall not be convertible into or exchangeable for any other security.
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20.
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Additional Issues
. The Issuer may, without notice to or the consent of the holders of the 2020 Notes, create and issue additional notes with the same terms as
the 2020 Notes in all respects, except for the issue date, the public offering price and, under certain circumstances, the first interest payment date. Such additional notes shall be consolidated and form a single series with the 2020 Notes;
provided that if such additional notes are not fungible with the 2020 Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number. No additional 2020 Notes may be issued if an event of default has occurred and
is continuing with respect to such series of 2020 Notes.
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21.
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Other Terms
. The 2020 Notes shall have the other terms and shall be substantially in the form set forth in the form of the 2020 Notes attached hereto as Annex
B-1. In case of any conflict between this Annex B and the form of the 2020 Notes, the form of the 2020 Notes shall control.
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Capitalized terms used but not otherwise defined in this Annex B shall have the respective meanings ascribed to such terms in the Indenture.
B-6
ANNEX B-1
[FORM OF 2020 Note]
THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
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No. R – A1
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CUSIP NO. 268648 AQ5
ISIN NO. US268648AQ50
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EMC CORPORATION
2.650% NOTES DUE 2020
EMC Corporation, a Massachusetts corporation (the
“Issuer,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
[
] Dollars ($[
]) on June 1, 2020 and to pay interest on said principal sum from June 6, 2013, or from the most recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on June 1 and December 1 (each such date, an “Interest Payment Date”) of each year commencing on December 1, 2013, at the rate of 2.650% per annum until the principal hereof
shall have become due and payable.
The amount of interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year comprised of twelve 30-day months. In the event that any date on which the principal or interest payable on this Note is not a Business Day, then payment of principal or interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment in respect of such delay). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note is registered at the close of business on the record date for such interest installment, which shall be the close of business on the immediately preceding
May 15 and November 15 prior to such Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered holders on such record date and may be
paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest), notice whereof shall be given by
mail by or on behalf of the Issuer to the registered holders of Notes not less than 15 days preceding such subsequent record date, all as more fully provided in the Indenture. The principal of and the interest on this Note shall be payable at the
office or agency of the Issuer maintained for that purpose in any coin or currency of the United States of America that at the
B-1-1
time of payment is legal tender for payment of public and private debts;
provided
,
however,
that payment of interest may be made at the option of the Issuer by check mailed to the
person entitled thereto at such address as shall appear in the registry books of the Issuer;
provided
,
further
, that for so long as this Note is represented by a Registered Global Security, payment of principal, premium, if any, or
interest on this Note may be made by wire transfer to the account of the Depositary or its nominee.
Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used in this Note which are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
The provisions of this Note are continued on the
reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
B-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or
in facsimile.
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EMC CORPORATION
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
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By:
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Authorized Signatory
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Dated:
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B-1-3
[FORM OF REVERSE SIDE OF NOTE]
This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer designated as its 2.650% Notes due
2020 (the “Notes”). The Securities are all issued or to be issued under and pursuant to an Indenture, dated as of June 6, 2013 (the “Indenture”), duly executed and delivered between the Issuer and Wells Fargo Bank, National
Association as trustee with respect to the Notes (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Issuer, the Trustee and
the holders of the Securities and the terms upon which the Notes are to be authenticated and delivered. The terms of individual series of Securities may vary with respect to interest rate or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
The Notes are issuable only as Registered Securities in minimum denominations
of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes as requested by the holder
surrendering the same.
Except as set forth below, this Note is not redeemable and is not entitled to the benefit of a sinking
fund or any analogous provision.
The Notes may be redeemed, in whole at any time or in part from time to time, at the option
of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of their principal amount and (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments
of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the principal amount of any Note remaining outstanding after a redemption in part shall be
$2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment
date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption
notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of the Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of
the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee
by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the Depositary.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of
the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global Markets Inc., J.P.
Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
“Treasury Rate” means, with respect to
any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price on such redemption date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Senior Securities or Subordinated
Securities, as the case may be, of all series issued under such Indenture then outstanding and affected (each voting as one class), to add any provisions to, or change in any manner, eliminate or waive any of the provisions of, such Indenture or
modify in any manner the rights of the holders of the Securities or Coupons so affected;
provided
that the Issuer and the Trustee, may not, without the consent of the holder of each Outstanding Security affected thereby, (i) extend
the final maturity of the principal of any Security or reduce the principal amount thereof or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof or change
the currency in which the principal thereof (other than as otherwise may be provided with respect to such series), premium, if any, or interest thereon is payable or reduce the amount of the principal of any Original Issue Discount Security that is
payable upon acceleration or provable in bankruptcy, or in the case of Subordinated Securities of any series, modify any of the subordination provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse
to the holders of such Subordinated Securities, or alter certain provisions of the Indenture relating to Securities not denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of any Securityholder to
institute suit for the enforcement of any payment thereof when due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder or (ii) reduce the aforesaid percentage in principal amount of Securities of
any series issued under the Indenture, the consent of the holders of which is required for any such modification. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any
series, the holders of a majority in aggregate principal amount Outstanding of the Securities of each such series, each such series voting as a separate class (or, of all Securities, as the case may be voting as a single class) may under certain
circumstances waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul a declaration of default and its consequences, but no such waiver or rescission and annulment shall
extend to or affect any subsequent default or shall impair any right consequent thereto.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the
registry books of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer for such purpose in Minneapolis, Minnesota, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder hereof or by its attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such
registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED
GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Registered Global Securities
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Date
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Principal Amount of Notes by which this
Registered Global Security is to be
Reduced or
Increased, and Reason for
Reduction or Increase
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Remaining Principal Amount of this
Registered Global Security
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Notation Made By
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ANNEX C
Pursuant to Section 2.3 of the Indenture, dated as of June 6, 2013 (the “Indenture”), between EMC Corporation, a Massachusetts corporation (the “Issuer”), and Wells Fargo
Bank, National Association, as trustee (the “Trustee”), the terms of a series of securities to be issued pursuant to the Indenture are as follows:
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1.
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Designation
. The designation of the securities is “3.375% Notes due 2023” (the “2023 Notes”).
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2.
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Initial Aggregate Principal Amount
. The 2023 Notes shall be limited in initial aggregate principal amount to $1,000,000,000 (except for 2023 Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other 2023 Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).
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3.
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Currency Denomination
. The 2023 Notes shall be denominated in Dollars.
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4.
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Maturity
. The date on which the principal of the 2023 Notes is payable is June 1, 2023.
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5.
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Rate of Interest; Interest Payment Date; Regular Record Dates
. Each 2023 Note shall bear interest from June 6, 2013 at 3.375% per annum until the
principal thereof is paid. Such interest shall be payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2013, to the persons in whose names the 2023 Notes are registered at the close of
business on the immediately preceding May 15 and November 15, respectively. Interest on the 2023 Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from June 6, 2013.
Interest on the 2023 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which principal, premium, if any, or interest is payable on the 2023 Notes is not a Business Day, then
payment of the principal, premium, if any, or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).
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6.
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Place of Payment
. Principal of, premium, if any, and interest on the 2023 Notes shall be payable, and the transfer of the 2023 Notes shall be registrable, at the
office or agency of the Issuer to be maintained for such purpose in Minneapolis, Minnesota, except that, at the option of the Issuer, interest may be paid by mailing a check to the address of the person entitled thereto as it appears on the 2023
Notes register;
provided, however
, that while any 2023 Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the 2023 Notes may be made by wire transfer to the account of the
Depositary or its nominee.
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7.
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Optional Redemption
. The 2023 Notes may be redeemed, in whole, at any time, or in part, from time to time, at the option of the Issuer, for
cash, at a redemption price equal to the greater of (i) 100% of their principal amount and, unless the 2023 Notes are redeemed on or after March 1, 2023, (ii) an amount, as determined by the Quotation Agent, equal to the sum of the
present values of the
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C-1
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remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the
principal amount of any 2023 Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on 2023 Notes that are due and payable on interest
payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the 2023 Notes to be redeemed
at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge
of the 2023 Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the 2023 Notes or portions thereof called for
redemption. If less than all of the 2023 Notes are to be redeemed, the 2023 Notes to be redeemed will be selected by the Trustee by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the
Depositary.
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“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the 2023 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the 2023 Notes.
“Comparable Treasury Price” means, with respect to any
redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the
Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global
Markets Inc., J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
C-2
“Treasury Rate” means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption
date.
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8.
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Mandatory Redemption
. The 2023 Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.
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9.
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Denominations
. The 2023 Notes shall be issued initially in minimum denominations of $2,000 and shall be issued in integral multiples of $1,000 in excess thereof.
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10.
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Amount Payable Upon Acceleration
. The principal of the 2023 Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the
Indenture.
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11.
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Payment Currency
. Principal and interest on the 2023 Notes shall be payable in Dollars.
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12.
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Payment Currency – Election
. The principal of and interest on the 2023 Notes shall not be payable in a currency other than Dollars.
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13.
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Payment Currency – Index
. The principal of and interest on the 2023 Notes shall not be determined with reference to an index based on a coin or currency.
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14.
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Registered Securities
. The 2023 Notes shall be issued only as Registered Securities. The 2023 Notes shall be issuable as Registered Global Securities.
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15.
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Additional Amounts
. The Issuer shall not pay additional amounts on the 2023 Notes held by a Person that is not a U.S. Person in respect of taxes or similar
charges withheld or deducted.
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16.
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Definitive Certificates
. Section 2.8 of the Indenture will govern the transferability of the 2023 Notes in definitive form.
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17.
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Registrar; Paying Agent; Depositary
. The Trustee shall initially serve as the registrar and the paying agent for the 2023 Notes. The Depository Trust Company
shall initially serve as the Depositary for the Registered Global Security representing the 2023 Notes.
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18.
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Events of Default; Covenants
. There shall be no deletions from or modifications or additions to the Events of Default set forth in Section 5.1 of the
Indenture with respect to the 2023 Notes. There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the 2023 Notes:
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Limitation on Liens
. The Issuer covenants that, so long as any of the 2023 Notes remain outstanding, it shall not, nor shall it permit any
domestic wholly owned subsidiary to, create or incur any mortgage, pledge, security interest or lien (each, a “Lien”) on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without
effectively providing that the 2023 Notes
C-3
shall be secured by a lien ranking equal to and ratably with (or, at the Issuer’s option, senior to) such secured Indebtedness until such time as such Indebtedness is no longer secured by
such Lien, except that the foregoing restriction shall not apply to:
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(a)
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Liens existing on the date hereof;
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(b)
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Liens created or incurred after the closing date of the offering of the 2023 Notes created in favor of the holders of the 2023 Notes;
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(c)
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Liens in favor of the Issuer or one of its domestic wholly owned subsidiaries;
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(d)
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(i) Liens given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of financing)
the payment of all or any portion of the purchase price for the acquisition (including acquisition through merger or consolidation or the acquisition of a Person directly or indirectly owning such property) of any replacement for the Principal
Property, including capital lease or purchase money transactions in connection with any such acquisition, or all or any portion of the cost of refurbishment, improvement, expansion, renovation, development or construction of any Principal Property;
provided that with respect to this clause (i), the Liens shall be given prior to, at the time of or within 12 months after such acquisition, or completion of such refurbishment, improvement, expansion, renovation, development or construction, or the
full operation of such Principal Property, whichever is latest, and shall attach solely to such Principal Property (including any refurbishments, improvements, expansions, renovations, development or construction thereof or then or thereafter placed
thereon) and any proceeds thereof; and (ii) Liens existing on all or any portion of any replacement for the Principal Property at the time of acquisition thereof (including acquisition through merger or consolidation or the acquisition of a
Person then directly or indirectly owning such property) whether or not such existing Liens were given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of
financing) the payment of the purchase price of such property;
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(e)
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Liens on any Principal Property in favor of the United States of America or any state thereof, or in favor of any other country, or any political subdivision,
department, agency or instrumentality thereof to secure progress or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed for the purpose of financing all or any portion of the cost of acquiring,
refurbishing, improving, expanding, renovating, developing or constructing such Principal Property, including Liens incurred in connection with pollution control, industrial revenue or similar financing;
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(f)
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pledges, Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or to secure public or statutory obligations of the Issuer or any of its
domestic wholly owned subsidiaries, or in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Issuer or any of its domestic wholly owned subsidiaries is a party, or in litigation or other proceedings such as, but not limited to, interpleader proceedings, and other similar
pledges, Liens or deposits made or incurred in the ordinary course of business;
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C-4
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(g)
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Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including Lens arising out of
judgments or awards against the Issuer or any of its domestic wholly owned subsidiaries with respect to which the Issuer or such domestic wholly owned subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time
to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens incurred by the Issuer or any of its domestic wholly owned subsidiaries for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which the Issuer or such domestic wholly owned subsidiary is a party;
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(h)
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Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other Liens or charges incidental to the conduct of the business of the Issuer or any of its domestic wholly owned subsidiaries or the
ownership of the assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and which do not, in the opinion of the Issuer, materially impair the use of such assets in the operation
of the business of the Issuer or such domestic wholly owned subsidiary or the value of such assets for the purposes thereof;
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(i)
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Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; and
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(j)
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Liens which are incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or
replacements) any Lien, or any Indebtedness which is secured by any Lien (including any premium required to be paid and costs and expenses incurred in connection with such extensions, renewals, substitutions, refinancings, refundings or
replacements), permitted to be created or incurred under the Indenture.
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Notwithstanding the above, the Issuer
or any of its domestic wholly owned subsidiaries may, without equally and ratably securing the 2023 Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect
thereto, Aggregate Debt does not exceed the greater of (i) 20% of the Issuer’s Consolidated Net Worth on a consolidated basis calculated as of the date of the creation or incurrence of the Lien and (ii) 20% of the Issuer’s
Consolidated Net Worth on a consolidated basis calculated as of the date of the issuance of the 2023 Notes.
“Aggregate
Debt” means, as of the date of determination, the aggregate principal amount of the Issuer’s and its domestic wholly owned subsidiaries’ Indebtedness incurred after the closing date of the offering of the 2023 Notes and secured by
Liens not permitted by the first paragraph under “—Limitation on Liens” above.
“Consolidated Net
Worth” means, as of any date of determination, shareholders’ equity as reflected on the Issuer’s most recent consolidated balance sheet prepared in accordance with GAAP.
“GAAP” means accounting principles generally accepted in the United States of America, which are in effect as of the date of
application thereof.
C-5
“Indebtedness” of any specified Person means any indebtedness in respect of
borrowed money.
“Person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Principal Property” means the Issuer’s (1) principal offices in Hopkinton, Massachusetts or any replacement thereof and (2) each of the Issuer’s data center facilities and
manufacturing facilities unless, with respect to clause (2), the Issuer’s board of directors (which term, as defined in the indenture, includes committees thereof) has determined in good faith that such center or facility is not of material
importance to the total business conducted by the Issuer and its wholly owned subsidiaries, taken as a whole.
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19.
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Conversion and Exchange
. The 2023 Notes shall not be convertible into or exchangeable for any other security.
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20.
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Additional Issues
. The Issuer may, without notice to or the consent of the holders of the 2023 Notes, create and issue additional notes with the same terms as
the 2023 Notes in all respects, except for the issue date, the public offering price and, under certain circumstances, the first interest payment date. Such additional notes shall be consolidated and form a single series with the 2023 Notes;
provided that if such additional notes are not fungible with the 2023 Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number. No additional 2023 Notes may be issued if an event of default has occurred and
is continuing with respect to such series of 2023 Notes.
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21.
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Other Terms
. The 2023 Notes shall have the other terms and shall be substantially in the form set forth in the form of the 2023 Notes attached hereto as Annex
C-1. In case of any conflict between this Annex C and the form of the 2023 Notes, the form of the 2023 Notes shall control.
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Capitalized terms used but not otherwise defined in this Annex C shall have the respective meanings ascribed to such terms in the Indenture.
C-6
ANNEX C-1
[FORM OF 2023 NOTE]
THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
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No. R – A1
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CUSIP NO. 268648 AN2
ISIN NO. US268648AN20
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EMC CORPORATION
3.375% NOTES DUE 2023
EMC Corporation, a Massachusetts corporation (the
“Issuer,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
[
] Dollars ($[
]) on June 1, 2023 and to pay interest on said principal sum from June 6, 2013, or from the most recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on June 1 and December 1 (each such date, an “Interest Payment Date”) of each year commencing on December 1, 2013, at the rate of 3.375% per annum until the principal hereof
shall have become due and payable.
The amount of interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year comprised of twelve 30-day months. In the event that any date on which the principal or interest payable on this Note is not a Business Day, then payment of principal or interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment in respect of such delay). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note is registered at the close of business on the record date for such interest installment, which shall be the close of business on the immediately preceding
May 15 and November 15 prior to such Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered holders on such record date and may be
paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest), notice whereof shall be given by
mail by or on behalf of the Issuer to the registered holders of Notes not less than 15 days preceding such subsequent record date, all as more fully provided in the Indenture. The principal of and the interest on this Note shall be payable at the
office or agency of the Issuer maintained for that purpose in any coin or currency of the United States of America that at the
B-1-1
time of payment is legal tender for payment of public and private debts;
provided
,
however,
that payment of interest may be made at the option of the Issuer by check mailed to the
person entitled thereto at such address as shall appear in the registry books of the Issuer;
provided
,
further
, that for so long as this Note is represented by a Registered Global Security, payment of principal, premium, if any, or
interest on this Note may be made by wire transfer to the account of the Depositary or its nominee.
Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used in this Note which are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
The provisions of this Note are continued on the
reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
B-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or
in facsimile.
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EMC CORPORATION
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
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By:
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Authorized Signatory
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Dated:
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B-1-3
[FORM OF REVERSE SIDE OF NOTE]
This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer designated as its 3.375% Notes due
2023 (the “Notes”). The Securities are all issued or to be issued under and pursuant to an Indenture, dated as of June 6, 2013 (the “Indenture”), duly executed and delivered between the Issuer and Wells Fargo Bank, National
Association as trustee with respect to the Notes (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Issuer, the Trustee and
the holders of the Securities and the terms upon which the Notes are to be authenticated and delivered. The terms of individual series of Securities may vary with respect to interest rate or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
The Notes are issuable only as Registered Securities in minimum denominations
of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes as requested by the holder
surrendering the same.
Except as set forth below, this Note is not redeemable and is not entitled to the benefit of a sinking
fund or any analogous provision.
The Notes may be redeemed, in whole, at any time, or in part, from time to time, at the
option of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of their principal amount and, unless the Notes are redeemed on or after March 1, 2023, (ii) an amount, as determined by the Quotation Agent, equal
to the sum of the present values of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption; provided that the principal amount
of any Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on interest payment dates falling on
or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date. Notices will be sent to holders of the Notes to be redeemed at least 30 and not more than
60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of the Notes pursuant to
Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. If less than all of the Notes
are to be redeemed, the Notes to be redeemed will be selected by the Trustee by lot or another method the Trustee deems to be fair and appropriate in accordance with the procedures of the Depositary.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of
the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations.
C-1-1
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and their respective successors;
provided, however
, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury
Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption
date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Senior Securities or Subordinated Securities, as the case may be, of all series issued under such Indenture then outstanding and
affected (each voting as one class), to add any provisions to, or change in any manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the rights of the holders of the Securities or Coupons so affected;
provided
that the Issuer and the Trustee, may not, without the consent of the holder of each Outstanding Security affected thereby, (i) extend the final maturity of the principal of any Security or reduce the principal amount
thereof or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof or change the currency in which the principal thereof (other than as otherwise may be
provided with respect to such series), premium, if any, or interest thereon is payable or reduce the amount of the principal of any Original Issue Discount Security that is payable upon acceleration or provable in bankruptcy, or in the case of
Subordinated Securities of any series, modify any of the subordination provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such Subordinated Securities, or alter certain
provisions of the Indenture relating to Securities not denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of any Securityholder to institute suit for the enforcement of any payment thereof when due or,
if the Securities provide therefor, any right of repayment at the option of the Securityholder or (ii) reduce the aforesaid percentage in principal amount of Securities of any series issued under the Indenture, the consent of the holders of
which is required for any such modification. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, the holders of a majority in aggregate principal amount Outstanding
of the Securities of each such series, each such series voting as a separate class (or, of all Securities, as the case may be voting as a single class) may under certain circumstances waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul a declaration of default and its consequences, but no such waiver or rescission and annulment shall extend to or affect any subsequent default or shall impair any right
consequent thereto.
C-1-2
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the
registry books of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer for such purpose in Minneapolis, Minnesota, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder hereof or by its attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge shall be made for any such
registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW.
C-1-3
[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED
GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Registered Global Securities
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Date
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Principal Amount of
Notes by which this
Registered Global
Security is to be
Reduced or Increased,
and Reason for
Reduction or
Increase
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Remaining Principal
Amount of this
Registered
Global Security
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Notation Made By
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C-1-4