UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 3, 2013
SCHLUMBERGER N.V. (SCHLUMBERGER LIMITED)
(Exact name of registrant as specified in its charter)
Curaçao | 1-4601 | 52-0684746 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
42, rue Saint-Dominique, Paris, France 75007
5599 San Felipe, 17th Floor, Houston, Texas 77056
Parkstraat 83, The Hague, The Netherlands 2514 JG
(Addresses of principal executive offices and zip or postal codes)
Registrants telephone number in the United States, including area code: (713) 375-3400
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01 Other Events .
On December 3, 2013, Schlumberger Investment SA (SISA) issued $1,500,000,000 aggregate principal amount of its 3.650% Senior Notes due 2023 (the Notes) under a registration statement on Form S-3 under the Securities Act of 1933, as amended (the Securities Act), filed with the Securities and Exchange Commission (the Commission) on August 26, 2013 (Registration No. 333-190822) (the Registration Statement). The Notes, which are fully and unconditionally guaranteed by Schlumberger Limited (Schlumberger), were sold pursuant to an underwriting agreement dated as of November 25, 2013 (the Underwriting Agreement), by and among (a) SISA and Schlumberger and (b) Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters (collectively, the Underwriters). The Notes were issued under an Indenture dated as of December 3, 2013, by and among SISA, as issuer, Schlumberger, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the Indenture), as supplemented by a First Supplemental Indenture dated as of December 3, 2013 by and among SISA, as issuer, Schlumberger, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the First Supplemental Indenture).
The relevant terms of the Notes, the Indenture and the First Supplemental Indenture are further described under the caption Description of the Notes in the prospectus supplement dated November 25, 2013, filed with the Commission by Schlumberger on November 26, 2013, pursuant to Rule 424(b)(5) under the Securities Act and in the section entitled Description of Debt Securities in the base prospectus dated August 26, 2013, included in the Registration Statement, which descriptions are incorporated herein by reference.
The Underwriting Agreement, the Indenture and the First Supplemental Indenture (including the form of the Notes) are filed as exhibits hereto and incorporated herein by reference. The descriptions of the Underwriting Agreement, the Indenture and the First Supplemental Indenture (including the form of the Notes) in this Current Report on Form 8-K are summaries and are qualified in their entirety by the terms of the Underwriting Agreement, the Indenture and the Supplemental Indenture (including the form of the Notes), respectively. Schlumberger is filing this Current Report on Form 8-K so as to file with the Commission certain items that are to be incorporated by reference into its Registration Statement.
Item 9.01 Financial Statements and Exhibits .
The following exhibits are filed as part of this report:
(d) Exhibits
1 | Underwriting Agreement dated November 25, 2013, by and between (a) Schlumberger Investment SA and Schlumberger Limited and (b) Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC. | |
4.1 | Indenture dated as of December 3, 2013, among Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon Trust Company, N.A., as trustee. | |
4.2 | First Supplemental Indenture dated as of December 3, 2013, among Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon Trust Company, N.A., as trustee. | |
4.3 | Form of 3.650% Senior Notes due 2023 (included as Exhibit A to Exhibit 4.2). | |
5.1 | Opinion of Baker Botts L.L.P. | |
5.2 | Opinion of Loyens & Loeff Luxembourg S.à r.l. | |
5.3 | Opinion of STvB Advocaten. | |
23.1 | Consent of Baker Botts LLP (included in Exhibit 5.1). | |
23.2 | Consent of Loyens & Loeff Luxembourg S.à r.l. (included in Exhibit 5.2). | |
23.3 | Consent of STvB Advocaten (included in Exhibit 5.3). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SCHLUMBERGER N.V. | ||
(SCHLUMBERGER LIMITED) | ||
By: |
/s/ Howard Guild |
|
Howard Guild | ||
Chief Accounting Officer |
Date: December 3, 2013
Exhibit 1
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES LLC
SCHLUMBERGER INVESTMENT SA
$1,500,000,000 3.650% Senior Notes due 2023
guaranteed by
SCHLUMBERGER LIMITED
Underwriting Agreement
November 25, 2013
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Schlumberger Investment SA, a public limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg and having its registered address at 5, Avenue Gaston Diderich, L-1420 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B 163.122 (the Company ), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the Underwriters ), for whom Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC are acting as
representatives (each a Representative , and collectively, the Representatives ), $1,500,000,000 principal amount of its 3.650% Senior Notes due 2023 (the Securities ). The Securities will be issued pursuant to an Indenture to be dated as of December 3, 2013 (the Indenture ) among the Company, Schlumberger Limited, a Curacao corporation, as guarantor (the Guarantor ), and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee ), and will be unconditionally guaranteed on an unsecured senior basis by the Guarantor (the Guarantee ).
The Company and the Guarantor hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement . The Company and the Guarantor have prepared and filed with the Securities and Exchange Commission (the Commission ) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act ), a registration statement on Form S-3 (File No. 333-190822), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430B under the Securities Act to be part of the registration statement at the time of its effectiveness ( Rule 430 Information ), is referred to herein as the Registration Statement ; and as used herein, the term Preliminary Prospectus means each preliminary prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term Prospectus means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company and the Guarantor have filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the Rule 462 Registration Statement ), then any reference herein to the term Registration Statement shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to amend , amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act ) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Time of Sale (as defined below) , the Company and the Guarantor had prepared the following information (collectively, the Time of Sale Information ): a Preliminary Prospectus dated November 25, 2013, and each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
Time of Sale means 3:00 p.m., New York City time, on November 25, 2013.
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2. Purchase of the Securities by the Underwriters .
(a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter's name in Schedule 1 hereto at a price equal to 99.210% of the principal amount thereof plus accrued interest, if any, from December 3, 2013 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company and the Guarantor understand that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company and the Guarantor acknowledge and agree that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Davis Polk & Wardwell LLP at 10:00 A.M., New York City time, on December 3, 2013, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the Closing Date .
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company ( DTC ), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the Global Note ), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) The Company and the Guarantor acknowledge and agree that each Underwriter is acting solely in the capacity of an arms length contractual counterparty to the Company and the Guarantor with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantor or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the
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Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Company or the Guarantor with respect thereto. Any review by the Representatives or any Underwriter of the Company, the Guarantor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter and shall not be on behalf of the Company or the Guarantor or any other person.
3A. Representations and Warranties of the Company and the Guarantor . The Company and the Guarantor jointly and severally represent and warrant to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Preliminary Prospectus based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
(b) Time of Sale Information . The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Time of Sale Information based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii), (iii) and (iv) below) an Issuer Free Writing Prospectus ) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
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listed on Annex A hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Issuer Free Writing Prospectus based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
(d) Registration Statement and Prospectus. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge of the Company or the Guarantor, threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust Indenture Act ), and did not and will not contain any untrue statement of a material fact or omit to state a material fact or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
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(e) Organization and Good Standing of the Company . The Company has been duly incorporated, is validly existing as a corporation in good standing, to the extent applicable, under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business and is duly qualified to transact business and is in good standing, to the extent applicable, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing, to the extent applicable, would not be reasonably expected to have a material adverse effect on the financial condition, results of operations or business of the Guarantor and its subsidiaries, taken as a whole ( Material Adverse Effect ).
(f) Due Authorization . The Company has all requisite right, power and authority to execute and deliver the Securities and the Company has all requisite right, power and authority to execute and deliver this Agreement and the Indenture (collectively, the Transaction Documents ) and to perform its obligations hereunder and thereunder; and all corporate action required to be taken by it for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(g) The Indenture. The Indenture has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company (assuming the due authorization, execution and delivery of the other parties thereto), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors rights generally and general principles of equity (collectively, the Enforceability Exceptions ).
(h) The Securities. The Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(i) Underwriting Agreement . This Agreement has been duly authorized, executed and delivered by the Company.
(j) Descriptions of the Transaction Documents . Each Transaction Document conforms in all material respects to the description thereof contained in each of the Time of Sale Information and the Prospectus.
(k) No Violation or Default . The Company is not (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
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(l) No Conflicts; No Consents Required . The execution and delivery by the Company, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene (i) any provision of applicable law; (ii) the articles of incorporation or by-laws of the Company; (iii) any agreement or other instrument binding upon the Company; or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, except, in the case of clauses (i), (iii) and (iv) above, for any such contravention that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under the Transaction Documents or the Securities, except such as may be required by the securities or Blue Sky laws of the various states of the United States of America or comparable laws of other jurisdictions in connection with the offer and sale of the Securities.
(m) Legal Proceedings . There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party or to which any of the properties of the Company is subject other than proceedings described in each of the Time of Sale Information and the Prospectus and proceedings that would not be reasonably expected to have a Material Adverse Effect or a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement, the Indenture or the Securities or to consummate the transactions contemplated by the Prospectus.
(n) Investment Company Act . The Company is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Time of Sale Information and the Prospectus, will be exempt from regulation as an investment company as such term is defined in the Investment Company Act of 1940, as amended.
(o) No Stabilization . The Company has not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
3B. Representations and Warranties of the Guarantor . The Guarantor represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Preliminary Prospectus based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
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(b) Time of Sale Information . The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Time of Sale Information based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company and the Guarantor (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to any statements or omissions in the Issuer Free Writing Prospectus based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
(d) Registration Statement and Prospectus. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge of the
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Company or the Guarantor, threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantor make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto based upon information relating to any Underwriter furnished to the Company in writing through the Representatives expressly for use therein.
(e) Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when filed with the Commission, conformed or will conform, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and, when read together with the other in formation in such Registration Statement, Prospectus or Time of Sale Information, as the case may be, at the time the Registration Statement became effective, at the time the Prospectus was issued, at the Time of Sale and at the Closing Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The financial statements and the related notes thereto of the Guarantor and its consolidated subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act ), as applicable, and present fairly in all material respects the financial position of the Guarantor and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, except as disclosed therein; and the other Guarantor financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Company and its subsidiaries and presents fairly the information shown thereby. The interactive data in eXtensible Business Reporting Language incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information fairly presents the information called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable thereto.
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(g) No Material Adverse Change. There has not occurred any material adverse change, in the financial condition, or in the earnings, business or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, from that set forth in the most recent financial statements of the Guarantor and its consolidated subsidiaries contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(h) Organization and Good Standing of the Company and the Guarantor. Each of the Company and the Guarantor has been duly incorporated, is validly existing as a corporation in good standing, to the extent applicable, under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its respective property and to conduct its business and is duly qualified to transact business and is in good standing, to the extent applicable, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing, to the extent applicable, would not be reasonably expected to have a Material Adverse Effect.
(i) Organization and Good Standing of the Guarantors Significant Subsidiaries; Capitalization. Each significant subsidiary of the Guarantor has been duly incorporated or organized, is validly existing as a corporation or other legal entity in good standing (to the extent applicable to the significant subsidiary) under the laws of the jurisdiction of its incorporation or formation, has the corporate, partnership or other entity power and authority to own its property and to conduct its business and is duly qualified to transact business and is in good standing (to the extent applicable to such significant subsidiary) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not be reasonably expected to have a Material Adverse Effect; except as set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus, all of the issued shares of capital stock of each significant subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims (except for such liens, encumbrances, equities or claims as are not, individually or in the aggregate, material to the ownership, use or value thereof or as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus).
(j) Due Authorization. The Company has all requisite right, power and authority to execute and deliver its respective Securities and the Company and the Guarantor have all requisite right, power and authority to execute and deliver the Transaction Documents and to perform their respective obligations hereunder and thereunder; and all corporate action required to be taken by them for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
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(k) The Indenture. The Indenture has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Guarantor (assuming the due authorization, execution and delivery of the other parties thereto), enforceable in accordance with its terms, subject to the Enforceability Exceptions.
(l) The Securities and the Guarantee . The Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantee has been duly authorized by the Guarantor and, when the Securities have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement . This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.
(n) Descriptions of the Transaction Documents . Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(o) No Violation or Default. Neither the Company, the Guarantor, nor any of the Guarantors significant subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of the Guarantors significant subsidiaries is a party or by which the Company, the Guarantor or any of the Guarantors significant subsidiaries is bound or to which any of the property or assets of the Company, the Guarantor or any of the Guarantors significant subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
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(p) No Conflicts; No Consents Required. The execution and delivery by the Company and by the Guarantor of, and the performance by the Company and by the Guarantor of their obligations under, this Agreement, the Indenture (including the Guarantee set forth therein) and the Securities will not contravene (i) any provision of applicable law; (ii) the articles of incorporation or by-laws of the Company and of the Guarantor; (iii) any agreement or other instrument binding upon the Company, the Guarantor or any of the Guarantors significant subsidiaries; or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, the Guarantor or any of the Guarantors significant subsidiaries, except, in the case of clauses (i), (iii) and (iv) above, for any such contravention that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company and by the Guarantor of their obligations under this Agreement, the Indenture (including the Guarantee set forth therein) or the Securities, except such as may be required by the securities or Blue Sky laws of the various states of the United States of America or comparable laws of other jurisdictions in connection with the offer and sale of the Securities.
(q) Legal Proceedings. There are no legal or governmental proceedings pending or, to the knowledge of the Company or the Guarantor, threatened to which the Company, the Guarantor or any of the Guarantors significant subsidiaries is a party or to which any of the properties of the Company, the Guarantor or any of the Guarantors significant subsidiaries is subject other than proceedings described in each of the Registration Statement, the Time of Sale Information and the Prospectus and proceedings that would not be reasonably expected to have a Material Adverse Effect or a material adverse effect on the power or ability of the Company and the Guarantor to perform their obligations under this Agreement, the Indenture (including the Guarantee set forth therein) or the Securities or to consummate the transactions contemplated by the Prospectus.
(r) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial statements of the Guarantor and its consolidated subsidiaries are independent public accountants with respect to the Guarantor and its consolidated subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s) No Undisclosed Relationships. No relationship, direct or indirect, exists between the Guarantor or any of its subsidiaries, on the one hand, and the directors, officers, stockholders or other affiliates of the Guarantor or any of its subsidiaries, on the other, that would be required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.
(t) Investment Company Act. The Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, will be exempt from regulation as an investment company as such term is defined in the Investment Company Act of 1940, as amended.
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(u) Compliance With Environmental Laws. The Guarantor and its significant 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 all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except as described in each of the Time of Sale Information and the Prospectus and except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(v) No Liabilities Associated with Environmental Laws . There are no costs or liabilities associated with 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) except as described in each of the Time of Sale Information and the Prospectus or which would not, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(w) Disclosure Controls . The Guarantor maintains an effective system of disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Guarantor in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commissions rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Guarantors management as appropriate to allow timely decisions regarding required disclosure. The Guarantor has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(x) Accounting Controls. The Guarantor maintains systems of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Guarantor maintains internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements 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 managements 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. Except as disclosed or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses or significant deficiencies in the Guarantors internal controls.
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(y) Compliance with OFAC. The Guarantor will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.
(z) No Brokers Fees. Neither the Guarantor nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any Underwriter for a brokerage commission, finders fee or like payment in connection with the offering and sale of the Securities.
(aa) No Stabilization. Neither the Company nor the Guarantor has taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(bb) Sarbanes-Oxley Act . The Guarantor is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act ).
4. Further Agreements of the Company and the Guarantor . The Company and the Guarantor jointly and severally covenant and agree with each Underwriter that:
(a) Required Filings. The Company and the Guarantor will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430B under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex A hereto) to the extent required by Rule 433 under the Securities Act; and the Company and the Guarantor will file promptly all reports and any definitive proxy or information statements required to be filed by the Company and the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company and the Guarantor will furnish, or cause to be furnished, copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
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(b) Delivery of Copies. The Company and the Guarantor will deliver, without charge, (i) to the Representatives, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company and the Guarantor will furnish, or cause to be furnished, to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. From the date hereof until the end of the Prospectus Delivery Period, the Company and the Guarantor will advise the Representatives promptly, and confirm such advice in writing (which advice may be delivered via e-mail), (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening in writing of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) of the receipt by the Company and the Guarantor of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company and the Guarantor of any notice with respect to any suspension of the qualification of the Securities for offer and
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sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company and the Guarantor will use their reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will use their reasonable best efforts to obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or 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 (ii) it is necessary, in the opinion of counsel to the Guarantor or counsel to the Underwriters, to amend or supplement any of the Time of Sale Information to comply with law, the Company and the Guarantor will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters, such amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented will not include 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, in light of the circumstances under which they were made, not misleading or so that any of the Time of Sale Information will comply with law.
(f) Ongoing Compliance . If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include 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, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary, in the opinion of counsel to the Guarantor or counsel to the Underwriters, to amend or supplement the Prospectus to comply with law, the Company the Guarantor will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that the Prospectus will comply with law .
(g) Blue Sky Compliance. The Company and the Guarantor will cooperate with the Underwriters to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that neither the Company nor the Guarantor shall be required to (i)
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qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Guarantor will make generally available to its security holders and the Representatives as soon as practicable, but in any event not later than 16 months after the effective date (as defined in Rule 158(c) under the Securities Act), an earning statement (which need not be audited) that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Guarantor, Rule 158).
(i) Clear Market. During the period from the date hereof through and including the Closing Date, the Company and the Guarantor will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Guarantor and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading Use of Proceeds.
(k) DTC . The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(l) No Stabilization. Neither the Company nor the Guarantor will take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention . The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters . Each Underwriter hereby represents to the Company and the Guarantor and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing prospectus , as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and the Guarantor and not incorporated by reference into the Registration Statement and any press release issued by the Company and the Guarantor) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3A(c) or 3B(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Guarantor in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus ). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex A hereto without the consent of the Guarantor.
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(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company and the Guarantor if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and the Guarantor of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act, shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company and the Guarantor contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Guarantor and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Guarantor by any nationally recognized statistical rating organization, as such term is defined in Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Guarantor or any of its significant subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3B(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto after the Time of Sale) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
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(e) Officer's Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Company and of the Guarantor reasonably satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the representations made by the Company or the Guarantor, as applicable, set forth in Sections 3A(b) and 3A(d) with respect to the Company and Sections 3B(b) and 3B(d) with respect to the Guarantor hereof are true and correct, (ii) confirming that, to the best knowledge of such officer, the other representations and warranties made by the Company or the Guarantor, as applicable, in this Agreement are true and correct and that the Company or the Guarantor, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraph (b) above with respect to the Company or the Guarantor, as applicable, and to the effect that no event or condition of a type described in Section 3B(g) hereof shall have occurred or shall exist.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the Company and the Guarantor, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a cut-off date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company. (i) Baker Botts L.L.P., U.S. counsel for the Company and the Guarantor, shall have furnished to the Representatives, at the request of the Company and the Guarantor, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C hereto; (ii) Loyens & Loeff Luxembourg S.a.r.l., Luxembourg counsel for the Company shall have furnished to the Representatives as well as to Bank of New York Mellon, at the request of the Company, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex D hereto; (iii) STvB Advocaten, Curacao counsel for the Guarantor, shall have furnished to the Representatives, at the request of the Guarantor, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex E hereto; and (iv) Alexander C. Juden, Secretary and General Counsel of the Guarantor, shall have furnished to the Representatives, at the request of the Guarantor, his written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex F hereto.
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(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantee; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantee.
(j) Good Standing . The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company, the Guarantor and each significant subsidiary in their respective jurisdictions of organization (as of the closest practical date prior to the Closing Date as possible), in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k) DTC . The Securities shall be eligible for clearance and settlement through DTC.
(l) Additional Documents. On or prior to the Closing Date, the Company and the Guarantor shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution .
(a) Indemnification of the Underwriters. The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, agents, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the
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Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except (x) insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company and the Guarantor in writing through the Representatives expressly for use therein and (y) insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission which pertains exclusively to the Company, only the Company and the Guarantor shall be obligated to indemnify and hold harmless as set forth in this Section 7(a).
(b) Indemnification of the Company and the Guarantor. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, each of their respective affiliates, agents, directors and officers who signed the Registration Statement and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company and the Guarantor in writing through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or the Time of Sale Information, it being understood and agreed that the only such information consists of the following information set forth in the Preliminary Prospectus and the Prospectus under the caption Underwriting: the names of the Underwriters provided in paragraph 1 and the table immediately following paragraph 1, paragraph 3, sentences 3 and 4 in paragraph 7 and paragraph 8.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the Indemnified Person ) shall promptly notify the person against whom such indemnification may be sought (the Indemnifying Person ) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
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Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses reasonably incurred of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses reasonably incurred shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by J.P. Morgan Securities LLC and any such separate firm for the Company, the Guarantor, their respective directors and officers who signed the Registration Statement and any control persons of the Company and the Guarantor shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final non-appealable judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel reasonably incurred as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (after deducting discounts and commissions to the Underwriters but before deducting expenses) received by the Company and the Guarantor from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
23
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Termination . This Agreement may be terminated in the absolute discretion of the Representatives (except as provided in clause (iv) below), by prior notice to the Guarantor, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company or the Guarantor shall have been suspended on any exchange; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
9. Defaulting Underwriter .
(a) If, on the Closing Date, any one or more Underwriters defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder and the default exceeds one-eleventh of the aggregate amount of the Securities to be purchased hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons reasonably satisfactory to the Guarantor on the terms contained in this Agreement. If, within 36 hours after any such default by any one or more Underwriters, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Guarantor shall be entitled to a further period of 36 hours within which to procure other persons reasonably satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of any one or more defaulting Underwriters, either the non-defaulting Underwriters or the Guarantor may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of U.S. counsel for the Company and the Guarantor or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Guarantor agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that one or more defaulting Underwriter agreed but failed to purchase.
24
(b) If the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Guarantor shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter's pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Guarantor as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Guarantor shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company or the Guarantor, except that the Company and the Guarantor will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantor or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses .
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor jointly and severally agree to pay or cause to be paid all out-of-pocket costs and expenses incident to the performance of its their respective obligations hereunder, including without limitation, (i) the out-of-pocket costs incident to the authorization, issuance, initial sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the out-of-pocket costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the out-of-pocket costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and out-of-pocket expenses of the Company's and the Guarantors counsel and independent accountants; (v) the fees and out-of-pocket expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and out-of-pocket expenses of the Trustee and any paying agent (including related reasonable fees and expenses of any counsel to such parties); (viii) all out-of-pocket expenses and application fees incurred in
25
connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, and the approval of the Securities for book-entry transfer by DTC; and (ix) all out-of-pocket expenses incurred by the Company and the Guarantor in connection with any road show presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company and the Guarantor jointly and severally agree to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses reasonably incurred of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby; provided, however, that in the case of clauses (ii) and (iii) above, the Company and the Guarantor shall not be required to pay such costs and expenses where such failure to consummate the Agreement or termination is by reason of a default by any of the Underwriters.
12. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival . The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantor and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Guarantor or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantor or the Underwriters.
14. Certain Defined Terms . For purposes of this Agreement, (a) except where otherwise expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities Act; (b) the term business day means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term subsidiary has the meaning set forth in Rule 405 under the Securities Act; and (d) the term significant subsidiary has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act and refers only to those significant subsidiaries listed on Exhibit 21 to the Guarantors Annual Report on Form 10-K for the year ended December 31, 2012 as filed with the Commission on January 31, 2013.
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16. Miscellaneous .
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013 (fax: 212-816-7912), Attention: General Counsel; c/o Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005 (fax: 212-797-2202), Attention: Debt Capital Markets Syndicate and c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-270-1063), Attention: High Grade Syndicate Desk 3 rd Floor. Notices to the Companies and the Guarantor shall be given to them at 42 rue Saint Dominique, 75007 Paris, France, Attention: Treasurer Eastern Hemisphere and 5599 San Felipe, Houston, TX 77056, Fax: (713) 513-2006, Attention: Vice President & Treasurer.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
27
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, | ||
SCHLUMBERGER INVESTMENT SA | ||
By | /s/ Philippe Petre | |
Name: Philippe Petre | ||
Title: Director B | ||
SCHLUMBERGER LIMITED | ||
By | /s/ Imran Kizilbash | |
Name: Imran Kizilbash | ||
Title: Vice President Treasurer |
Accepted: November 25, 2013 | ||
CITIGROUP GLOBAL MARKETS INC. | ||
By | /s/ Brian D. Bednarski | |
Name: Brian D. Bednarski | ||
Title: Managing Director | ||
DEUTSCHE BANK SECURITIES INC. | ||
By | /s/ Christopher Gerry | |
Name: Christopher Gerry | ||
Title: Director | ||
By | /s/ Ben-Zion Smilchensky | |
Name: Ben-Zion Smilchensky | ||
Title: Managing Director | ||
J.P. MORGAN SECURITIES LLC | ||
By | /s/ Robert Bottamedi | |
Name: Robert Bottamedi | ||
Title: Vice President | ||
Each for themselves and on behalf of the several Underwriters listedin Schedule 1 hereto. |
Schedule 1
Underwriter |
Principal Amount | |||
Citigroup Global Markets Inc. |
$ | 300,000,000 | ||
Deutsche Bank Securities Inc. |
300,000,000 | |||
J.P. Morgan Securities LLC |
300,000,000 | |||
Mitsubishi UFJ Securities (USA), Inc. |
112,500,000 | |||
Morgan Stanley & Co. LLC |
112,500,000 | |||
BBVA Securities Inc. |
46,875,000 | |||
BNP Paribas Securities Corp. |
46,875,000 | |||
DNB Markets, Inc. |
46,875,000 | |||
HSBC Securities (USA) Inc. |
46,875,000 | |||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
46,875,000 | |||
RBC Capital Markets, LLC |
46,875,000 | |||
SG Americas Securities, LLC |
46,875,000 | |||
Standard Chartered Bank |
46,875,000 | |||
|
|
|||
Total |
$ | 1,500,000,000 |
Annex A
Time of Sale Information
| Pricing Term Sheet, dated November 25, 2013, substantially in the form of Annex B. |
Annex B
Filed Pursuant to Rule 433
Registration Statement No. 333-190822
Schlumberger Investment SA $1,500,000,000 3.650% Senior Notes due 2023
Pricing Term Sheet
November 25, 2013
Guarantor: | Schlumberger Limited | |
Issuer: | Schlumberger Investment SA | |
Title: | 3.650% Senior Notes due 2023 | |
Issue Format: | SEC registered | |
Principal Amount: | $1,500,000,000 | |
Coupon: | 3.650% | |
Price to Public: | 99.660% | |
Interest Payment Dates: | June 1 and December 1, beginning June 1, 2014 | |
Trade Date: | November 25, 2013 | |
Settlement Date: | December 3, 2013 | |
Maturity Date: | December 1, 2023 | |
Make-Whole Call: | T + 15 basis points | |
Par Call: | At any time on or after September 1, 2023 | |
Benchmark Treasury: | 2.750% due November 15, 2023 | |
Treasury Yield: | 2.741% | |
Spread to Benchmark Treasury: | +95 basis points | |
Reoffer Yield: | 3.691% | |
CUSIP: | 806854 AH8 | |
ISIN: | US806854AH81 | |
Joint Book-Running Managers: |
Citigroup Global Markets Inc. Deutsche Bank Securities Inc. J.P. Morgan Securities LLC Mitsubishi UFJ Securities (USA), Inc. Morgan Stanley & Co. LLC |
|
Co-Managers: |
BBVA Securities Inc. BNP Paribas Securities Corp. DNB Markets, Inc. HSBC Securities (USA) Inc. Merrill Lynch, Pierce, Fenner & Smith Incorporated RBC Capital Markets, LLC SG Americas Securities, LLC Standard Chartered Bank |
Settlement and Sale of the Notes
The Issuer expects to deliver the Notes against payment for the Notes on or about December 3, 2013 which will be the fifth business day following November 25, 2013, the date of the pricing of the Notes. Since trades in the secondary market generally settle in three business days, purchasers who wish to trade Notes on the date of pricing or the next succeeding business day will be required, by virtue of the fact that the Notes initially will settle in T+5, to specify alternative settlement arrangements to prevent a failed settlement.
The issuer has filed a registration statement (including a prospectus) with the 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 if you request it by calling Citigroup Global Markets Inc. toll-free at 1-800-831-9146, Deutsche Bank Securities Inc. toll-free at 1-800-503-4611 and J.P. Morgan Securities LLC collect at 1-212-834-4533.
ANNEX C
Form of Opinion and 10b-5 Statement of Baker Botts L.L.P.
The opinion and 10b-5 statement of U.S. counsel for the Company and the Guarantor, to be delivered pursuant to Section 6(g)(i) of this Agreement, shall be to the effect that:
This opinion is being furnished to you pursuant to Section 6(g) of the Underwriting Agreement, dated as of November 25, 2013 (the Underwriting Agreement), among Schlumberger Investment SA, a company organized under the laws of the Grand Duchy of Luxembourg (the Company), Schlumberger Limited, a company organized under the laws of Curaçao (the Guarantor), and Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives of the underwriters named therein (the Underwriters), relating to the issuance and sale by the Company of $1,500,000,000 aggregate principal amount of its 3.650% Senior Notes due 2023 (the Notes). The Notes are to be guaranteed (the Guarantee) by the Guarantor. The Notes and the related Guarantee are to be issued under the Base Indenture, as supplemented by the first supplemental indenture, dated as of December 3, 2013, among the Company, the Guarantor and the Trustee (together with the Base Indenture, the Indenture).
The Company and the Guarantor have filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act), a registration statement on Form S-3 (Registration No. 333-190822), including a prospectus dated August 26, 2013 (the Basic Prospectus) relating to the registration of the offer and sale of an indeterminate amount of debt securities by the Company and the guarantee of the Guarantor related thereto. Such registration statement (including all documents filed as part thereof or incorporated by reference therein), as amended and supplemented as of the date of the Underwriting Agreement, is hereinafter referred to as the Registration Statement. The final prospectus supplement dated November 25, 2013 relating to the Notes and the Guarantee, together with the Basic Prospectus, as first filed with the Commission on November 26, 2013 pursuant to and in accordance with Rule 424(b), including all documents incorporated by reference therein, is hereinafter referred to as the Prospectus. The preliminary prospectus supplement subject to completion dated November 25, 2013 relating to the Notes and the Guarantee, together with the Basic Prospectus, as first filed with the Commission on November 25, 2013 pursuant to and in accordance with Rule 424(b), including all documents incorporated by reference therein, is hereinafter referred to as the Preliminary Prospectus. The final term sheet setting forth the terms of the Notes and the Guarantee as filed with the Commission pursuant to and in accordance with Rule 433(d) on November 25, 2013 and the Preliminary Prospectus are hereinafter collectively referred to as the Time of Sale Information.
C-1
We have examined the originals, or copies certified or otherwise identified, of (i) Registration Statement, (ii) the Time of Sale Information, (iii) the Prospectus, (iii) the Underwriting Agreement, (iv) the Indenture (including the Guarantee), (v) the forms of the Notes, (vi) certificates of public officials and of representatives of the Company, the Guarantor and the Trustee, (vii) the agreements and instruments identified to us by an officer of the Guarantor as material to the Guarantor and listed in Exhibit A hereto (the Specified Agreements) and (viii) statutes and other instruments and documents, as a basis for the opinions hereinafter expressed. In giving the opinions set forth below, we have relied without independent investigation or verification upon certificates and representations of officers or other representatives of the Companies and of public officials, the Guarantor and the Trustee, including without limitation, the representations and warranties of the Company and the Guarantor contained in the Underwriting Agreement, with respect to the accuracy of the factual matters contained therein. In making our examination, we have assumed that all signatures on documents examined by us are genuine, all documents submitted to us as originals are authentic and all documents submitted to us as certified or photostatic copies conformed with the originals of such documents.
On the basis of the foregoing, and subject to the limitations and qualifications set forth herein, we are of the opinion that:
1. | The Indenture (including the Guarantee therein), assuming the due authorization, execution and delivery thereof by each of the parties thereto, constitutes a valid and legally binding agreement of each of the Company and the Guarantor, enforceable against each of the Company and the Guarantor in accordance with its terms, except as the enforceability thereof may be subject to the effect of any bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general applicability relating to or affecting creditors rights or remedies, to general principles of equity and public policy (regardless of whether enforcement is sought in a proceeding at law or in equity) and to the discretion of the court before which any proceeding may be brought (collectively, the Enforceability Exceptions). |
2. | The Notes, when duly authenticated and delivered by the Trustee in accordance with the terms of the applicable Indenture and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, and assuming their due authorization, execution and delivery by the Company, and further assuming the due authorization, execution and delivery of the Indenture by the parties thereto, constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, in each case except as the enforceability thereof may be subject to the effect of any Enforceability Exceptions. |
3. | The Notes, the Guarantee and the Indenture conform in all material respects to the descriptions thereof in the Registration Statement, the Time of Sale Information and the Prospectus under the caption Description of the Notes insofar as such descriptions purport to summarize certain provisions of documents or legal matters. |
C-2
4. | The execution and delivery of the Underwriting Agreement, the Indenture and the Notes by the Company and the Guarantor, and the issue and sale of the Notes by the Company and the Guarantee by the Guarantor to the Underwriters pursuant to the Underwriting Agreement, do not on the date hereof result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Specified Agreement, nor will such actions result in any violation of any United Stated federal or New York State statute, rule or regulation applicable to the Company or the Guarantor (assuming compliance with all applicable federal and state antifraud laws and state securities laws). |
5. | No consent, approval, authorization, order, registration or qualification of or with any governmental authority is required under United States federal law or any New York State statute, rule or regulation applicable to the Company or the Guarantor for the issue and sale of the Notes by the Company and the Guarantee by the Guarantor to the Underwriters pursuant to the Underwriting Agreement and except such as may have been required under applicable state securities laws, as to which we have not been asked to, and we do not, express any opinion, and those which have been previously obtained. |
6. | Neither of the Company or the Guarantor is and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus under the caption Use of Proceeds, none will be, an investment company, as such term is defined in the Investment Company Act of 1940, as amended. |
We have reviewed the Registration Statement, the Time of Sale Information and the Prospectus and have participated in conferences with officers and other representatives of the Company and the Guarantor, with representatives of the Guarantors independent registered public accounting firm and with your representatives and your counsel, at which the contents of the Registration Statement, the Time of Sale Information and the Prospectus and related matters were discussed. The purpose of our professional engagement was not to establish or confirm factual matters set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and we have not undertaken to verify independently any of the factual matters in such documents. Moreover, many of the determinations required to be made in the preparation of the Registration Statement, the Time of Sale Information and the Prospectus involve matters of a non-legal nature. Accordingly, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements included in the Registration Statement, the Time of Sale Information and the Prospectus (except to the extent stated in paragraph 3 above). Subject to the foregoing, and on the basis of the information we gained in the course of performing the services referred to above, we advise you that nothing came to our attention that caused us to believe that:
C-3
(1) the Registration Statement, as of the latest Effective Date, contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the states therein not misleading,
(2) the Time of Sale Information, as of the Time of Sale, included an untrue statement of a material fact or omitted 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, or
(3) the Prospectus, as of its date or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits 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;
it being understood that in each case we have not been asked to, and do not, express any belief with respect to (a) the financial statements and schedules or other financial or accounting information included or incorporated by reference therein or omitted therefrom, (b) representations and warranties and other statements of fact contained in the exhibits to documents incorporated by reference therein or (c) that part of the Registration Statement that constitutes the Form T-1.
Various issues pertaining to (i) Luxembourg law are addressed in the opinion of Loyens & Loeff Luxembourg S.a.r.l. furnished to you pursuant to Section 6(g) of the Underwriting Agreement and (ii) Curaçao law are addressed in the opinion of STvB Advocaten furnished to you pursuant to Section 6(g) of the Underwriting Agreement. We express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the opinions or conclusions expressed herein, we have, with your consent, assumed such matters.
C-4
The opinions set forth above are, subject to any further limitations specified herein, limited in all respects to the applicable laws of the State New York and applicable United States federal law, in each case as in effect on the date hereof. The Trustee is authorized to accept and rely on the opinions set forth in paragraphs 1 and 2 above in the same manner as if such opinions were addressed to the Trustee. Except as provided in the immediately preceding sentence, this letter is solely for your benefit as representatives of the Underwriters and may not be relied upon by any other person or for any other purpose. No other use or distribution of this letter may be made without our prior written consent. This letter speaks as of the date hereof, and we disclaim any obligation to update it.
Very truly yours,
JDK/MBH/AJE/SEB
C-5
Exhibit A
Specified Agreements
1. | Indenture by and between Schlumberger Limited and Citibank N.A., dated June 9, 2003 |
2. | First Supplemental Indenture by and between Schlumberger Limited and Citibank N.A., dated June 9, 2003 |
3. | Indenture by and between Schlumberger SA, Schlumberger Norge AS, Schlumberger Oilfield UK Plc, Schlumberger Limited and The Bank of New York Mellon, dated January 10, 2011 |
4. | First Supplemental Indenture to the Indenture dated January 10, 2011 by and between Schlumberger SA, Schlumberger Limited and The Bank of New York Mellon, dated January 10, 2011 |
5. | Second Supplemental Indenture to the Indenture dated January 10, 2011 by and between Schlumberger Norge AS, Schlumberger Limited and The Bank of New York Mellon, dated January 10, 2011 |
6. | Third Supplemental Indenture to the Indenture dated January 10, 2011 by and between Schlumberger Oilfield UK Plc, Schlumberger Limited and The Bank of New York Mellon, dated January 10, 2011 |
7. | Indenture by and between Schlumberger Norge AS, Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon, dated September 14, 2011 |
8. | First Supplemental Indenture to the Indenture dated September 14, 2011 by and between Schlumberger Norge AS, Schlumberger Limited and The Bank of New York Mellon, dated September 14, 2011 |
9. | Second Supplemental Indenture to the Indenture dated September 14, 2011 by and between Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon, dated September 14, 2011 |
10. | Indenture by and between Schlumberger Norge AS, Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon, dated July 31, 2012 |
11. | First Supplemental Indenture to the Indenture dated July 31, 2012 by and between Schlumberger Norge AS, Schlumberger Limited and The Bank of New York Mellon, dated July 31, 2012 |
12. | Second Supplemental Indenture to the Indenture dated July 31, 2012 by and between Schlumberger Investment SA, Schlumberger Limited and The Bank of New York Mellon, dated July 31, 2012 |
C-6
ANNEX D
Form of Opinions of Loyens & Loeff Luxembourg S.a.r.l.
The opinions of Loyens & Loeff Luxembourg S.a.r.l., Luxembourg counsel to Schlumberger Investment SA, to be delivered pursuant to Section 6(g)(ii) of this Agreement, shall be to the effect that:
(a) The Company has been duly incorporated, is validly existing and in good standing under the laws of the jurisdiction of its formation, organization or incorporation and has the corporate power and authority to own their property and to conduct their business as described in the Prospectus.
(b) All of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable.
(c) The Company has the full right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(d) This Agreement, the Indenture and the Securities have been duly authorized, executed and delivered by the Company.
(e) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law or the articles of incorporation or by-laws of the Company or, to the best of such counsels knowledge, any agreement or other instrument binding upon the Company that is material to the Company, or, to the best of such counsels knowledge, any judgment, order or decree of any Luxembourg governmental body, agency or court having jurisdiction over the Company, and no consent, approval, authorization or order of, or qualification with, any Luxembourg governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Securities.
Baker Botts L.L.P. is entitled to rely on this opinion in connection with the rendering of its opinion to be delivered pursuant to the Agreement or delivered in connection therewith.
D-1
ANNEX E
Form of Opinion of STvB Advocaten
The opinion of Curacao counsel for the Guarantor, to be delivered pursuant to Section 6(g)(iii) of this Agreement, shall be to the effect that:
(a) The Guarantor has been duly incorporated, is validly existing and in good standing under the laws of Curacao and has the corporate power and authority to own their property and to conduct their business as described in the Prospectus.
(b) The Guarantor has the full right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(c) This Agreement, the Indenture and the Guarantee has been duly authorized, executed and delivered by the Guarantor.
(d) The execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, this Agreement, the Indenture and the Guarantee will not contravene any provision of applicable law or the articles of incorporation or by-laws of the Guarantor or, to the best of such counsels knowledge, any agreement or other instrument binding upon the Guarantor that is material to the Guarantor, or, to the best of such counsels knowledge, any judgment, order or decree of any Netherland Antilles governmental body, agency or court having jurisdiction over the Guarantor, and no consent, approval, authorization or order of, or qualification with, any Netherland Antilles governmental body or agency is required for the performance by the Guarantor of its obligations under this Agreement, the Indenture or the Guarantee.
Baker Botts L.L.P. is entitled to rely on this opinion in connection with the rendering of its opinion to be delivered pursuant to the Agreement or delivered in connection therewith.
E-1
ANNEX F
Form of Opinion of Alexander C. Juden, Secretary and General Counsel of the Guarantor
The opinion of Alexander C. Juden, Secretary and General Counsel of the Guarantor, to be delivered pursuant to Section 6(g)(iv) of this Agreement shall be to the effect that:
(a) After due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company, the Guarantor or any of the Guarantors subsidiaries is a party or to which any of the properties of the Company, the Guarantor or any of its subsidiaries is subject other than proceedings described in each of the Registration Statement, Time of Sale Information and the Prospectus and proceedings that such counsel believes would not reasonably be expected to have a material adverse effect on the Company, the Guarantor and its subsidiaries, taken as a whole.
Baker Botts L.L.P. is entitled to rely on this opinion in connection with the rendering of its opinion to be delivered pursuant to the Agreement or delivered in connection therewith.
F-1
Exhibit 4.1
Schlumberger Investment SA
Schlumberger Limited
INDENTURE
Dated as of December 3, 2013
The Bank of New York Mellon
as Trustee, Registrar, Paying Agent
and Transfer Agent
SCHLUMBERGER INVESTMENT SA
SCHLUMBERGER LIMITED
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 3, 2013
Section of Trust Indenture Act of 1939 |
Section(s) of Indenture |
|
§310 (a)(1) |
7.10 | |
(a)(2) |
7.10 | |
(a)(3) |
Not Applicable | |
(a)(4) |
Not Applicable | |
(a)(5) |
7.10 | |
(b) |
7.8, 7.10 | |
§311 (a) |
7.11 | |
(b) |
7.11 | |
(c) |
Not Applicable | |
§312 (a) |
2.6 | |
(b) |
10.2 | |
§313 (a) |
7.6 | |
(b) |
7.6 | |
(c) |
7.6 | |
(d) |
7.6 | |
§314 (a) |
4.2, 4.7 | |
(b) |
Not Applicable | |
(c)(1) |
10.3 | |
(c)(2) |
10.3 | |
(c)(3) |
Not Applicable | |
(d) |
Not Applicable | |
(e) |
10.4 | |
§315 (a) |
7.1(b) | |
(b) |
7.5 | |
(c) |
7.1(a) | |
(d) |
7.1(c) | |
(d)(1) |
7.1(c)(1) | |
(d)(2) |
7.1(c)(2) | |
(d)(3) |
7.1(c)(3) | |
(e) |
6.14 | |
§316 (a)(1)(A) |
6.12 | |
(a)(1)(B) |
6.13 | |
(a)(2) |
Not Applicable | |
(a)(last sentence) |
2.10 | |
(b) |
6.8 | |
§317 (a)(1) |
6.3 | |
(a)(2) |
6.4 | |
(b) |
2.5 | |
§318 (a) |
10.19 |
Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
Page | ||||||
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||||
Section 1.1. |
Definitions | 1 | ||||
Section 1.2. |
Other Definitions | 5 | ||||
Section 1.3. |
Rules of Construction | 6 | ||||
ARTICLE II. THE SECURITIES |
6 | |||||
Section 2.1. |
Issuable in Series | 6 | ||||
Section 2.2. |
Establishment of Terms of Series of Securities | 6 | ||||
Section 2.3. |
Execution and Authentication | 9 | ||||
Section 2.4. |
Paying Agent, Registrar and Transfer Agent | 10 | ||||
Section 2.5. |
Paying Agent to Hold Money in Trust | 11 | ||||
Section 2.6. |
Securityholder Lists | 11 | ||||
Section 2.7. |
Transfer and Exchange | 11 | ||||
Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities | 12 | ||||
Section 2.9. |
Outstanding Securities | 13 | ||||
Section 2.10. |
Treasury Securities | 13 | ||||
Section 2.11. |
Temporary Securities | 13 | ||||
Section 2.12. |
Cancellation | 14 | ||||
Section 2.13. |
Defaulted Interest | 14 | ||||
Section 2.14. |
Global Securities | 14 | ||||
Section 2.15. |
CUSIP Numbers | 16 | ||||
ARTICLE III. REDEMPTION |
16 | |||||
Section 3.1. |
Notice to Trustee; No Liability for Calculations | 16 | ||||
Section 3.2. |
Selection of Securities to be Redeemed | 16 | ||||
Section 3.3. |
Notice of Redemption | 17 | ||||
Section 3.4. |
Effect of Notice of Redemption | 18 | ||||
Section 3.5. |
Deposit of Redemption Price | 18 | ||||
Section 3.6. |
Securities Redeemed in Part | 18 | ||||
Section 3.7. |
Sinking Fund | 18 | ||||
Section 3.8. |
Satisfaction of Sinking Fund Payments with Securities | 19 | ||||
Section 3.9. |
Redemption of Securities for Sinking Fund | 19 | ||||
Section 3.10. |
Redemption Upon Changes in Tax Law | 19 | ||||
ARTICLE IV. COVENANTS |
20 | |||||
Section 4.1. |
Payment of Principal, Premium and Interest | 20 | ||||
Section 4.2. |
Compliance Certificate | 21 | ||||
Section 4.3. |
Stay, Extension and Usury Laws | 21 | ||||
Section 4.4. |
Corporate Existence | 21 | ||||
Section 4.5. |
Limitation on Liens | 21 | ||||
Section 4.6. |
Additional Amounts | 23 | ||||
Section 4.7. |
Reports | 26 | ||||
ARTICLE V. SUCCESSORS |
26 | |||||
Section 5.1. |
Consolidation, Merger and Sale of Assets | 26 | ||||
Section 5.2. |
Assumption by a Subsidiary | 27 |
i
ARTICLE VI. DEFAULTS AND REMEDIES |
27 | |||||
Section 6.1. |
Events of Default | 27 | ||||
Section 6.2. |
Acceleration of Maturity; Rescission and Annulment | 29 | ||||
Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 29 | ||||
Section 6.4. |
Trustee May File Proofs of Claim | 30 | ||||
Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities | 30 | ||||
Section 6.6. |
Application of Money Collected | 31 | ||||
Section 6.7. |
Limitation on Suits | 31 | ||||
Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest | 32 | ||||
Section 6.9. |
Restoration of Rights and Remedies | 32 | ||||
Section 6.10. |
Rights and Remedies Cumulative | 32 | ||||
Section 6.11. |
Delay or Omission Not Waiver | 32 | ||||
Section 6.12. |
Control by Holders | 32 | ||||
Section 6.13. |
Waiver of Past Defaults | 33 | ||||
Section 6.14. |
Undertaking for Costs | 33 | ||||
ARTICLE VII. TRUSTEE |
33 | |||||
Section 7.1. |
Duties of Trustee | 33 | ||||
Section 7.2. |
Rights of Trustee | 35 | ||||
Section 7.3. |
May Hold Securities | 36 | ||||
Section 7.4. |
Trustees Disclaimer | 36 | ||||
Section 7.5. |
Notice of Defaults | 37 | ||||
Section 7.6. |
Reports by Trustee to Holders | 37 | ||||
Section 7.7. |
Compensation and Indemnity | 37 | ||||
Section 7.8. |
Replacement of Trustee | 38 | ||||
Section 7.9. |
Successor Trustee by Merger, etc. | 40 | ||||
Section 7.10. |
Eligibility; Disqualification | 40 | ||||
Section 7.11. |
Preferential Collection of Claims Against Company | 40 | ||||
ARTICLE VIII. DISCHARGE OF INDENTURE |
40 | |||||
Section 8.1. |
Termination of Companys Obligations | 40 | ||||
Section 8.2. |
Application of Trust Money | 44 | ||||
Section 8.3. |
Repayment to Company | 44 | ||||
Section 8.4. |
Reinstatement | 44 | ||||
ARTICLE IX. AMENDMENTS AND WAIVERS |
45 | |||||
Section 9.1. |
Without Consent of Holders | 45 | ||||
Section 9.2. |
With Consent of Holders | 46 | ||||
Section 9.3. |
Limitations | 47 | ||||
Section 9.4. |
Form of Amendments | 47 | ||||
Section 9.5. |
Revocation and Effect of Consents | 47 | ||||
Section 9.6. |
Notation on or Exchange of Securities | 48 | ||||
Section 9.7. |
Trustee Protected | 48 | ||||
ARTICLE X. MISCELLANEOUS |
48 | |||||
Section 10.1. |
Notices | 48 | ||||
Section 10.2. |
Communication by Holders with Other Holders | 50 | ||||
Section 10.3. |
Certificate and Opinion as to Conditions Precedent | 50 | ||||
Section 10.4. |
Statements Required in Certificate or Opinion | 50 | ||||
Section 10.5. |
Rules by Trustee and Agents | 51 |
ii
Section 10.6. |
Legal Holidays | 51 | ||||
Section 10.7. |
No Personal Liability of Directors, Officers, Employees and Certain Others | 51 | ||||
Section 10.8. |
FATCA | 51 | ||||
Section 10.9. |
Counterparts | 52 | ||||
Section 10.10. |
Governing Laws | 52 | ||||
Section 10.11. |
No Adverse Interpretation of Other Agreements | 52 | ||||
Section 10.12. |
Successors | 52 | ||||
Section 10.13. |
Severability | 52 | ||||
Section 10.14. |
Table of Contents, Headings, Etc. | 52 | ||||
Section 10.15. |
Judgment Currency | 53 | ||||
Section 10.16. |
English Language | 53 | ||||
Section 10.17. |
Submission to Jurisdiction; Appointment of Agent | 53 | ||||
Section 10.18. |
Waiver of Immunity | 54 | ||||
Section 10.19. |
Waiver of Jury Trial | 54 | ||||
Section 10.20. |
Trust Indenture Act Controls | 54 |
iii
Indenture dated as of December 3, 2013 by and among Schlumberger Investment SA, a public limited liability company ( société anonyme ) organized under the laws of the Grand Duchy of Luxembourg having its registered address at 5 Avenue Gaston Diderich, L-1420 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 163.122 (the Company ), Schlumberger Limited, a company organized under the laws of Curaçao (the Guarantor ), and The Bank of New York Mellon, as trustee (the Trustee ), registrar, paying agent and transfer agent.
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of the Securities (as defined below) issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions .
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under common control with such specified Person. For the purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities or by agreement or otherwise.
Agent means any Registrar, Paying Agent or Transfer Agent or any other agent appointed pursuant to this Indenture.
Board of Directors means the Board of Directors of the Company, or the Guarantor, or any duly authorized committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as applicable, to have been adopted by its Board of Directors or pursuant to authorization by its Board of Directors and to be in full force and effect on the date of the certification and delivered to the Trustee.
Business Day means, unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture for a particular Series, any day except a Legal Holiday.
Capital Stock means (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Certificated Securities means definitive Securities in registered non-global certificated form.
Company means Schlumberger Investment SA until a successor replaces it and thereafter means the successor.
Company Order or Company Request means a written order signed in the name of the Company by one of the Companys Officers.
Consolidated Net Worth means the amount of total stockholders equity shown in the Guarantors most recent quarterly consolidated statement of financial position.
Corporate Trust Office means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which, as of the date hereof is the address set forth in Section 10.1.
Default means any event which is, or after notice or passage of time or both would be, an Event of Default.
Depositary means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary for such Series by the Company which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, Depositary as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
Discount Security means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Dollars or $ means the currency of The United States of America.
Exchange Act means the Securities Exchange Act of 1934, as amended.
GAAP means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.
Global Security or Global Securities means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
2
Government Obligations means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depository receipt.
Guarantee means a guarantee by the Guarantor of the Companys obligations under this Indenture and any Securities and as provided in the applicable Board Resolution, Officers Certificate or supplemental indenture establishing the terms of such Series of Securities.
Holder or Securityholder means a Person in whose name a Security is registered in the register maintained by the Registrar.
Indenture means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.
indenture securities means the Securities.
Issue Date means, with respect to any Security, the date of original issuance of such Security.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in any of The City of New York, New York or a place of payment are authorized or obligated by law, regulation or executive order to remain closed.
Maturity , when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Mortgage means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance.
Non-recourse Debt means indebtedness as to which (a) none of the Company, the Guarantor and its Subsidiaries (x) provides credit support of any kind or (y) is directly or indirectly liable as a guarantor or otherwise and (b) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company, the Guarantor or any of its other Subsidiaries.
obligor on the indenture securities means the Company issuing the Securities and any successor to such obligor upon the Securities, and the Guarantor, and its successor.
3
Officer means the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, any Vice-President, the Treasurer, a Director, the Chairman, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company or the Guarantor, as applicable.
Officers Certificate means a certificate signed by an Officer of the Company or the Guarantor, as applicable.
Opinion of Counsel means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be a direct or indirect employee of or counsel to the Company or the Guarantor.
Person means any individual, corporation, partnership, limited liability company, association, joint venture, trust, joint stock company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
principal of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
Responsible Officer means any officer of the Trustee in its Corporate Trust Office responsible for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
Restricted Property means any real property, manufacturing plant, warehouse, office building or other physical facility, or any item of marine, transportation or construction equipment or other like depreciable assets of the Guarantor or any of its Restricted Subsidiaries, whether owned on or acquired after the Issue Date of the Securities of any Series, unless, in the opinion of the Board of Directors of the Guarantor, such plant or facility or other asset is not of material importance to the total business conducted by the Guarantor and its Restricted Subsidiaries taken as a whole.
Restricted Security , with respect to any Series of Securities, means a Security of such Series, unless or until it has been (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such Series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act or any similar provision then in force.
Restricted Subsidiary means any Subsidiary of the Guarantor which owns a Restricted Property.
SEC means the Securities and Exchange Commission.
Securities means any debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933, as amended.
4
Series or Series of Securities means each series of Securities of the Company created pursuant to Sections 2.1 and 2.2 hereof.
Stated Maturity when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.
Subsidiary means, with respect to any specified Person, (a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person (or a combination thereof); and (b) any partnership or limited liability company of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any subsidiary of such Person is a controlling general partner or otherwise controls such entity.
TIA means the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
Trustee means the Person named as the Trustee in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, Trustee as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
Unrestricted Securities , with respect to any Series of Securities, means a Security (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such Series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act or any similar provision then in force.
Section 1.2. Other Definitions .
TERM |
DEFINED IN
SECTION |
|
Additional Amounts |
4.6(a) | |
B ankruptcy Law |
6.1 | |
covenant defeasance |
8.1(b) | |
Custodian |
6.1 | |
Events of Default |
6.1 | |
Judgment Currency |
10.14 | |
legal defeasance |
8.1(c) |
5
New York Banking Day |
10.14 | |
Paying Agent |
2.4 | |
Process Agent |
10.16 | |
Registrar |
2.4 | |
Related Proceeding |
10.16 | |
Relevant Tax Jurisdiction |
4.6(a) | |
Required Currency |
10.14 | |
Taxes |
4.6(a) | |
Tax Redemption Date |
3.10 | |
Tax Jurisdiction |
4.6(a) | |
Transfer Agent |
2.4 |
Section 1.3. Rules of Construction .
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series .
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in, or pursuant to a Board Resolution, Officers Certificate or supplemental indenture establishing the terms of such Series of Securities.
Section 2.2. Establishment of Terms of Series of Securities .
At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.29) by or pursuant to a Board Resolution, Officers Certificate or supplemental indenture:
6
2.2.1. the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
2.2.2. the aggregate principal amount of the Securities of the Series to be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal and premium, if any, of the Securities of the Series is payable;
2.2.5. the rate or rates, which may be fixed or variable, at which the Securities of the Series shall bear interest or the manner of calculation of such rate or rates, if any, including any procedures to vary or reset such rate or rates, and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
2.2.6. the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means if other than as set forth in this Indenture;
2.2.7. the date or dates from which such interest shall accrue, the dates on which such interest will be payable or the manner of determination of such dates, and the record date for the determination of Holders to whom interest is payable on any such dates;
2.2.8. the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or deferral;
2.2.9. if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.10. the obligation, if any, of the Company to redeem or purchase, if other than as set forth herein, the Securities of the Series pursuant to any sinking fund or analogous provisions, including payments made in cash in anticipation of future sinking fund obligations, or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.11. the terms of any repurchase or remarketing rights;
2.2.12. if other than denominations of $2,000 or integral multiples of $1,000 in excess thereof, the denominations in which the Securities of the Series shall be issuable;
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2.2.13. the forms of the Securities of the Series including the form of the Trustees certificate of authentication for such Series;
2.2.14. any trustees, authenticating agents or Agents with respect to the Securities of the Series, if different from those set forth in this Indenture;
2.2.15. if the Securities of the Series shall be issued in whole or in part in the form of a Global Security or Securities, the type of Global Security to be issued; the terms and conditions, if different from those contained in this Indenture, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities in definitive registered form; the Depositary for such Global Security or Securities; and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.14.3;
2.2.16. any provisions granting special rights to Holders when a specified event occurs;
2.2.17. if the amount of principal or any premium or interest on Securities of any Series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined;
2.2.18. any special tax implications of the Securities, including provisions for original issue discount securities, if offered;
2.2.19. whether and upon what terms Securities of the Series may be defeased if different from the provisions set forth in this Indenture;
2.2.20. with regard to the Securities of any Series that do not bear interest, the dates for certain required reports to the Trustee;
2.2.21. whether the Securities of any Series will be issued as Unrestricted Securities or Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated under the Securities Act in reliance on which they will be sold;
2.2.22. any guarantees on the Securities of the Series, if different from, or in addition to, the Guarantee provided pursuant to this Indenture;
2.2.23. the currency or currencies in which payment of the principal of, premium, if any, and interest on, the Securities of the Series shall be payable;
2.2.24. if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
2.2.25. the provisions, if any, relating to any security provided for the Securities of the Series;
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2.2.26. any additional covenants or Events of Default that will apply to the Securities of the Series, or any changes to the covenants set forth in Article IV or the Events of Default set forth in Section 6.1 that will apply to the Securities of the Series, which may consist of establishing different terms or provisions from those set forth in Article IV or Section 6.1 or eliminating any such covenant or Event of Default with respect to the Securities of the Series;
2.2.27. any Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein;
2.2.28. whether the Securities of the Series will be convertible into or exchangeable for other Securities, common shares or other securities of any kind of the Company or another obligor, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the Holder or at the Companys option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein; and
2.2.29. any and all additional, eliminated or changed terms that shall apply to the Securities of the Series, including any terms that may be required by or advisable under United States laws or regulations, including the Securities Act and the rules and regulations promulgated thereunder, or advisable in connection with the marketing of Securities of that Series.
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, Officers Certificate or supplemental indenture referred to above.
Section 2.3. Execution and Authentication .
An Officer of the Company shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, Officers Certificate or supplemental indenture, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication unless otherwise provided by the relevant Board Resolution, Officers Certificate or supplemental indenture.
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The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, Officers Certificate or supplemental indenture delivered pursuant to Section 2.2.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, Officers Certificate or supplemental indenture establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a committee of Responsible Officers shall determine that such action would expose the Trustee to personal liability.
The Trustee may appoint an authenticating agent to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Paying Agent, Registrar and Transfer Agent .
The Company will maintain one or more paying agents (each, a Paying Agent ) for the Securities in the Borough of Manhattan, City of New York. The Company will undertake to maintain a Paying Agent in a member state of the European Union that is not obligated to withhold or deduct Tax pursuant to the European Union Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26 and 27 November 2000 on the taxation of savings income, or any law implementing, or complying with or introduced in order to conform to, such directive. The initial Paying Agent will be The Bank of New York Mellon in [ ] and thereafter Paying Agent shall mean or include each Person who is then a Paying Agent hereunder, and if at any time there is more than one such Person, Paying Agent as used with respect to the Securities of any Series shall mean the Paying Agent with respect to Securities of that Series.
The Company will also maintain one or more registrars (each, a Registrar ) with an office in the Borough of Manhattan, City of New York. The Company will also maintain a transfer agent (each a Transfer Agent ) in the Borough of Manhattan, City of New York. The initial Registrar will be The Bank of New York Mellon in [ ] and thereafter Registrar shall 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 Securities of that Series. The initial Transfer Agent will be The Bank of New York Mellon in [ ] and thereafter Transfer Agent shall mean or include each Person who is then a Transfer Agent hereunder, and if at any time
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there is more than one such Person, Transfer Agent as used with respect to the Securities of any Series shall mean the Transfer Agent with respect to Securities of that Series. The Registrar will maintain a register reflecting ownership of Securities outstanding from time to time and the Paying Agent will make payments on, and the Transfer Agents will facilitate transfer of Securities, on the behalf of the Company. The Company shall maintain an up-to-date copy of such register of its Securities at its registered office, and the Registrar shall provide upon written request by the Company an up-to-date copy thereof. Each Transfer Agent shall perform the functions of a transfer agent.
The Company may change any Paying Agent, Registrar or Transfer Agent for its Securities without prior notice to the Holders.
Section 2.5. Paying Agent to Hold Money in Trust .
The Company shall require each Paying Agent appointed by it other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6. Securityholder Lists .
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities, and the Company shall otherwise comply with TIA § 312(a).
Section 2.7. Transfer and Exchange .
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if the requirements for such transactions set forth in this Indenture are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrars request upon the Trustees receipt of a Company Order from the Company. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
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Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the delivery of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such delivery, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities .
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.8, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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Section 2.9. Outstanding Securities .
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Security, if applicable, effected by the Trustee in accordance with the provisions hereof and those described in this Section 2.9 as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a 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 6.2.
Section 2.10. Treasury Securities .
In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Securities .
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of Maturity in exchange for temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
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Section 2.12. Cancellation .
The Company at any time may deliver Securities to the Trustee for cancellation. The Agents shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Company unless the Company otherwise directs the Trustee in writing. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest .
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 10 days before the record date, the Company shall deliver to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global Securities .
2.14.1. Terms of Securities . A Board Resolution, an Officers Certificate or, a supplemental indenture shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
2.14.2. Transfer and Exchange . Notwithstanding any provisions to the contrary contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of this Indenture for Certificated Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officers Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Certificated Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
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Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
2.14.3. Legend . Any Global Security issued hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, 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 A SUCCESSOR DEPOSITARY.
2.14.4. Acts of Holders . The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.
2.14.5. Payments . Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof, which in the case of a Depositary therefor will be made in accordance with its applicable procedures.
2.14.6. Holders . The Company, the Trustee and each Agent shall treat the Person in whose name any Security is registered in the register maintained by the Registrar as the Holder for all purposes including for purposes of obtaining any consents, declarations, waivers or directions permitted or required to be given by the Holders pursuant to this Indenture.
2.14.7. None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Security, a member of, or a participant in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications to be given
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to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
Section 2.15. CUSIP Numbers .
The Company in issuing the Securities may use CUSIP, ISIN and or Common Code numbers (if then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and or Common Code 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 elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee; No Liability for Calculations .
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay such Series of Securities or may covenant to redeem and pay such Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in Sections 3.7, 3.8, 3.9 and 3.10 hereof and, as applicable, in the Board Resolution, Officers Certificate or supplemental indenture relating to such Series. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed at least 40 days before a redemption date (or such shorter notice as may be acceptable to the Trustee). The Trustee shall have no liability with respect to or obligation to calculate the redemption price of any Securities to be redeemed pursuant to this Indenture.
Section 3.2. Selection of Securities to be Redeemed .
Unless otherwise indicated for a particular Series by a Board Resolution, Officers Certificate or a supplemental indenture, if fewer than all of the Securities of a Series are to be redeemed at any time, the Trustee will select the Securities of such Series to be redeemed on a pro rata basis (or, in the case of Securities issued in global form, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise required by law or applicable stock exchange or Depositary requirements. The Trustee will not be liable for selections made by it as contemplated in this section.
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No Securities of a Series in principal amount of less than the minimum authorized denomination can be redeemed in part.
Notices of purchase or redemption will be given to each Holder pursuant to Section 3.3 and Section 10.1.
Section 3.3. Notice of Redemption .
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate or supplemental indenture, at least 30 days but not more than 60 days before a redemption date, the Company will deliver a notice of redemption to each Holder whose Securities are to be redeemed in accordance with Section 10.1, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Article VIII hereof.
The notice shall identify the Securities to be redeemed and corresponding CUSIP, ISIN or Common Code numbers, as applicable, and will state:
(a) the redemption date;
(b) the redemption price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid;
(c) if any Global Security is being redeemed in part, the portion of the principal amount of such Global Security to be redeemed and that, after the redemption date upon surrender of such Global Security, the principal amount thereof will be decreased by the portion thereof redeemed pursuant thereto;
(d) if any Certificated Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed, and that, after the redemption date, upon surrender of such Security, a new Certificated Security or Certificated Securities in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Certificated Security;
(e) the name and address of the Paying Agent(s) to which the Securities are to be surrendered for redemption;
(f) that Securities called for redemption must be surrendered to the relevant Paying Agent to collect the redemption price, plus accrued and unpaid interest, if any, and Additional Amounts, if any;
(g) that, unless the Company defaults in making such redemption payment, interest and Additional Amounts, if any, on Securities called for redemption cease to accrue on and after the redemption date;
(h) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
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(i) the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed; and
(j) that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or Common Code numbers, if any, listed in such notice or printed on the Securities.
At the Companys written request, the Trustee shall give the notice of redemption in the Companys name and at its expense; provided , however , that the Company has delivered to the Trustee, at least 40 days prior to the redemption date, an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.4. Effect of Notice of Redemption .
Once notice of redemption is given as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate or supplemental indenture, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
On or after any purchase or redemption date, unless the Company or the Guarantor defaults in payment of the purchase or redemption price, interest shall cease to accrue on Securities or portions thereof tendered for purchase or called for redemption.
Section 3.5. Deposit of Redemption Price .
On or before 10:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part .
Upon surrender of a Certificated Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Certificated Security of the same Series and the same Maturity equal in principal amount to the unredeemed portion of the Security surrendered.
Section 3.7. Sinking Fund .
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate or supplemental indenture, the provisions of Sections 3.8 and 3.9 shall be applicable to any sinking fund for the retirement of Securities of a Series.
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Section 3.8. Satisfaction of Sinking Fund Payments with Securities .
The Company (i) may deliver outstanding Securities of a Series other than any Securities previously called for redemption and (ii) may apply as a credit Securities of a Series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such Series required to be made pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.9. Redemption of Securities for Sinking Fund .
Not less than 40 days prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for that Series pursuant to the terms of the Series, the portion thereof, if any, that is to be satisfied by payment of cash in the currency in which the Securities of such Series are denominated (except as provided pursuant to Section 2.2), the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that Series pursuant to Section 3.8 and the basis for such credit. Together with such Officers Certificate, the Company will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3.
Section 3.10. Redemption Upon Changes in Tax Law .
The Company or the Guarantor, as applicable, may redeem its Securities (and the Guarantor may redeem any Securities which it has guaranteed), in whole but not in part, at its discretion at any time upon giving notice to the Holders of such Securities in accordance with Section 3.3 (which notice will be irrevocable), at a redemption price equal to 100% of the aggregate principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Company or the Guarantor, as applicable, for redemption (a Tax Redemption Date ) and all Additional Amounts (if any) then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders of such Securities on the relevant record date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof), if on the next date on which any amount would be payable in respect of such Securities, the Company or the Guarantor, as applicable, is or would be required to pay Additional Amounts, and the Company or Guarantor cannot avoid any such payment obligation by taking reasonable measures available to it, and the requirement arises as a result of:
(a) any amendment to, or change in, the laws (or any regulations or rulings promulgated thereunder) of a Relevant Tax Jurisdiction which change or amendment becomes effective on or after the Issue Date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on a date after the Issue Date, such later date), or
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(b) any amendment to, or change in, an official interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment, order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change becomes effective on or after the Issue Date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on a date after the Issue Date, such later date).
Neither the Company nor the Guarantor, as applicable, will give any such notice of redemption earlier than 90 days prior to the earliest date on which the Company or the Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of the applicable Securities was then due, and the obligation to pay Additional Amounts must be in effect at the time such notice is given. Prior to the giving of any notice of redemption of the Securities pursuant to the foregoing, the Company or the Guarantor, as applicable, will deliver to the Trustee an opinion of independent tax counsel to the effect that there has been such amendment or change which would entitle the Company or the Guarantor to redeem such Securities hereunder. In addition, before the Company or the Guarantor, as applicable, gives notice of redemption of such Securities as described above, it will deliver to the Trustee an Officers Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Company or the Guarantor, as applicable, taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such Officers Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders of the Securities.
The foregoing will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or the Guarantor is incorporated, organized or resident for tax purposes and any political subdivision thereof or therein.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal, Premium and Interest .
The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of, premium, if any, and interest on the Securities of that Series in accordance with the terms of such Securities and this Indenture. Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture for a particular Series, on or before 10:00 a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of, premium, if any, and interest, if any, on the Securities of each such Series in accordance with the terms of such Securities and this Indenture.
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Section 4.2. Compliance Certificate .
The Company shall deliver to the Trustee, within 120 days after the end of its fiscal year (which as of the date of this Indenture is December 31, or if the fiscal year with respect to the Company is changed so that it ends on a date other than December 31, such other fiscal year end date as the Company shall notify to the Trustee in writing) of the Company, an Officers Certificate complying with TIA § 314(a)(4) and stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge and what action the Company is taking or proposes to take with respect thereto).
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.3. Stay, Extension and Usury Laws .
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.4. Corporate Existence .
Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and rights (charter and statutory); provided , however , that the Company shall not be required to preserve any such right if its Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of its business and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders of the Securities.
Section 4.5. Limitation on Liens .
The Guarantor will not, and will not permit any of its respective Subsidiaries to, incur, issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed, secured by a Mortgage on any Restricted Property, or on any shares of stock, ownership interests in, or indebtedness of a Restricted Subsidiary, without
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effectively providing concurrently with the incurrence, issuance, assumption or guarantee of such secured indebtedness that the Securities (together with, if the Company or the Guarantor shall so determine, any of its other indebtedness or the indebtedness of any such Restricted Subsidiary then existing or thereafter created ranking on a parity with the Securities or Guarantees) shall be secured equally and ratably with (or prior to) such secured indebtedness, so long as such secured indebtedness shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured indebtedness (excluding any indebtedness secured by Mortgages of the types referred to in clauses (1) through (10) below) would not exceed 20% of Consolidated Net Worth as shown on the Guarantors most recent consolidated quarterly financial statements; provided , however , that these provisions shall not apply to:
(a) Mortgages existing on the date of original issuance of the Securities;
(b) Mortgages on property or assets of, or on any shares of stock, ownership interests in or indebtedness of, any Person existing at the time such Person becomes a Subsidiary (including a Restricted Subsidiary) of the Company or the Guarantor;
(c) Mortgages on property or assets existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or cost of construction, development, expansion or improvement thereof or to secure any indebtedness incurred prior to, at the time of, or within 12 months after, the acquisition or completion of construction, development, expansion or improvement of such property or assets or its commencement of commercial operations for the purpose of financing all or any part of the purchase price or cost of construction, development, expansion or improvement thereof;
(d) Mortgages in favor of the Company, the Guarantor or any other Subsidiary of the Guarantor;
(e) the Mortgage of any of the Guarantors property or assets or any property or assets of any of its Restricted Subsidiaries in favor of the United States of America, the Grand Duchy of Luxembourg or any other sovereign entity, or any state, province or other political subdivision thereof, or any entity, department, agency, instrumentality or comparable authority thereof, to secure partial, progress, advance or other payments pursuant to the provisions of any contract, statute, law, rule or regulation;
(f) the Mortgage of any property or assets to secure indebtedness of the pollution control, industrial revenue or other revenue bond type;
(g) Mortgages incurred or deposits made (including Mortgages and deposits securing letters of credit or similar financial assurance) to secure the performance of or in connection with bids, tenders, statutory, governmental or private contractual or other obligations, surety, performance, completion, appeal or similar bonds, leases, return-of-money bonds and other obligations similar to any of the foregoing, in each case in the ordinary course of business;
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(h) Mortgages arising by operation of law, including but not limited to Mortgages for taxes, assessments or similar charges that are not yet due or the validity of which is being contested in good faith by appropriate proceedings;
(i) Mortgages created in connection with the acquisition of property or assets, or a project financed with, Non-recourse Debt; and
(j) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses, inclusive; provided, that such extension, renewal or replacement Mortgage shall be limited to all or a part of the same property or assets that secured the Mortgage extended, renewed or replaced, plus improvements on such property or assets.
Section 4.6. Additional Amounts .
(a) All payments made by the Company under or with respect to the Securities, or by the Guarantor with respect to the Guarantee, will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, assessment or other governmental charge, including any related interest, penalties or additions to tax ( Taxes ) unless the withholding or deduction of such Taxes is then required by law or by interpretation or administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company (or a successor), or the Guarantor (or a successor), is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a Relevant Tax Jurisdiction ) or (2) any jurisdiction from or through which payment is made by or on behalf of the Company, or the Guarantor (including the jurisdiction of any Paying Agent for the applicable Securities) or any political subdivision thereof or therein (each, together with each Relevant Tax Jurisdiction, a Tax Jurisdiction ) will at any time be required to be made from any payments made or deemed made by or on behalf of the Company under or with respect to the Securities, or the Guarantor under or with respect to the applicable Guarantee, including payments of principal, redemption price, interest or premium, the Company or the Guarantor, as applicable, will pay such additional amounts (the Additional Amounts ) as may be necessary in order that the net amounts received in respect of such payments by each beneficial owner of the applicable Securities after such withholding, deduction or imposition (including any such withholding, deduction or imposition from such Additional Amounts) will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided , however , that no Additional Amounts will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of such Securities and the applicable Tax Jurisdiction (including, without limitation, being or having been a national, resident or citizen of, being or having been engaged in a trade or business in, being or having been physically present in, or having or having had a permanent establishment in, such jurisdiction for Tax purposes), other than the holding of such Security, the enforcement of rights under such Security or under the Guarantee or the receipt of any payments in respect of such Security or Guarantee;
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(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of such Security for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the applicable Security been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(4) any Tax imposed on or with respect to any payment by the Company or Guarantor to the Holder if such Holder is a fiduciary, partnership, limited liability company or other Person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such Holder been the sole beneficial owner of such Security;
(5) any Taxes withheld, deducted or imposed on a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(6) Taxes imposed on or with respect to a payment made to a Holder of such Security who would have been able to avoid such withholding or deduction by presenting such Security (where presentation is required) to another Paying Agent;
(7) any Taxes payable other than by deduction or withholding from payments under, or with respect to, such Securities or the Guarantee;
(8) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of such Security, to comply with any written request of the Company or the Guarantor addressed to the Holder to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the applicable Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the applicable Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in such Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification or documentation; or
(9) any combination of items (1) through (8) of this Section 4.6(a).
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(b) In addition to the foregoing, the Company and the Guarantor, as the case may be, will also pay and indemnify the beneficial owners for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by an applicable Tax Jurisdiction on the execution, delivery, issuance, or registration of its Securities, or this Indenture or the related supplement, Guarantee or any other document or instrument referred to therein.
(c) If the Company or the Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to its Securities, or the Guarantee, the Company or the Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises fewer than 45 days prior to that payment date, in which case the Company or Guarantor shall notify the Trustee promptly thereafter but no later than the Business Day prior to the relevant payment date) an Officers Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers Certificate(s) must also set forth any other information reasonably necessary to enable the Paying Agents to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officers Certificate as conclusive proof that such payments are necessary.
(d) The Company or the Guarantor, as the case may be, will make all withholdings and deductions required by law in respect of its Securities, and will remit the full amount deducted or withheld to the applicable Tax authority in accordance with applicable law. The Company or the Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. Upon reasonable written request, the Company or the Guarantor will furnish to the Trustee (or to a Holder or beneficial owner upon written request), within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or Guarantor, as the case may be, or if, notwithstanding such entitys efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Securities or of principal, interest or of any other amount payable under, or with respect to, any of the Securities or any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations in this Section 4.6 will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis , to any jurisdiction in which any successor Person to the Company or the Guarantor is incorporated, organized or resident for tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Person on the applicable Securities (or any Guarantee) and any political subdivision thereof or therein.
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Notwithstanding any provision herein or in the Securities or the Guarantee to the contrary, none of the Trustee, the Registrar, any transfer agent or any Paying Agent shall be required to determine the identity of a beneficial owner or be liable for any determination thereof by the Company or the Guarantor.
Section 4.7. Reports .
(a) So long as any Securities are outstanding, the Guarantor shall file with the Trustee, within 15 days after the Guarantor files with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Guarantor may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act. The Guarantor shall be deemed to have complied with the previous sentence to the extent that such information, documents and reports are filed with the SEC via EDGAR (or any successor electronic delivery procedure). The Company shall also comply with the provisions of TIA § 314(a).
(b) The Trustee shall not have any obligation to determine if and when the Guarantors information is available on the SECs (EDGAR) website. The Guarantor shall either (i) provide the Trustee with prompt written notification of such time as the Guarantor becomes or ceases to be a reporting company or (ii) continue to provide the Trustee with the foregoing information.
(c) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys or the Guarantors compliance with any of their respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE V.
SUCCESSORS
Section 5.1. Consolidation, Merger and Sale of Assets .
Neither the Company nor the Guarantor may consolidate with or merge into any other Person or transfer or lease all or substantially all of its assets to any Person unless any successor or purchaser (if the Company or the Guarantor, as applicable, is not the surviving entity) expressly assumes its obligations under this Indenture and the Securities or its Guarantees, as applicable, by an indenture supplemental to this Indenture to which the Company or the Guarantor is a party, and immediately after which, no Default or Event of Default, shall have happened and be continuing. An Officers Certificate and an Opinion of Counsel will be delivered to the Trustee, which will serve as conclusive evidence of compliance with this Section 5.1.
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Section 5.2. Assumption by a Subsidiary .
Any Subsidiary of the Guarantor may, at its option, assume the obligations of the Company under this Indenture and the Securities, provided that:
(a) such Subsidiary shall expressly assume such obligations in an assumption agreement or supplemental indenture duly executed and delivered to the Trustee, and
(b) immediately after giving effect to such assumption, no Default or Event of Default, shall have occurred and be continuing.
Upon any such assumption, the Person so assuming the Companys obligations under this Indenture and the Securities shall succeed to, and be substituted for, and may exercise any right and power of, the Company under the securities and this Indenture with the same effect as if such Person had been the issuer thereof and party hereto, and the Company shall be released from its liability as obligor under the Securities. An Officers Certificate and an Opinion of Counsel will be delivered to the Trustee, which will serve as conclusive evidence of compliance with this Section 5.2. Upon any such assumption, the Trustee shall notify Holders of such assumption.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default .
The following are Events of Default with respect to the Companys Securities of any Series, unless in the establishing Board Resolution, Officers Certificate or supplemental indenture, it is provided that such Series shall not have the benefit of said Event of Default:
(a) the Companys failure to pay any interest on the Securities within 30 days after such interest becomes due and payable;
(b) the Companys failure to pay principal of the Securities at Maturity, or if applicable, the redemption price, when the same become due and payable;
(c) the Companys failure to pay any sinking fund installment as and when the same shall become due and payable by the terms of the Securities, and continuance of such default for a period of 30 days;
(d) the Companys failure to comply with any of the covenants or agreements in the Securities or this Indenture (other than an agreement or covenant that the Company has included in this Indenture solely for the benefit of another Series of Securities that does not constitute part of the Companys Securities of such Series) for 90 days after written notice by the Trustee or by the Holders of at least 25% in principal amount of all outstanding Securities of such Series affected by that failure;
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(e) except as permitted by this Indenture, the Guarantee of the Companys Securities is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or the Guarantor, or any authorized Person acting on behalf of the Guarantor, denies or disaffirms the Guarantors obligations under the Guarantee;
(f) the Company or the Guarantor pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of a Custodian of it or for all or substantially all of its property,
(4) makes a general assignment for the benefit of its creditors, or
(5) generally is unable to pay its debts as the same become due;
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is for relief against the Company or the Guarantor, as applicable, in an involuntary case,
(2) appoints a Custodian of the Company or the Guarantor, as applicable, or for all or substantially all of its property, or
(3) orders the liquidation of the Company or the Guarantor, as applicable,
and the order or decree remains unstayed and in effect for 60 days; and
(h) any other Event of Default provided in the Officers Certificate, supplemental indenture or Board Resolution under which such Series of Securities is issued.
The term Bankruptcy Law means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under one Series of Securities issued under this Indenture will not necessarily be a default under another Series of Securities under this Indenture.
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Section 6.2. Acceleration of Maturity; Rescission and Annulment .
If an Event of Default for a Series of Securities occurs and is continuing (other than an Event of Default referred to in Section 6.1(f) or (g)), the Trustee or the Holders of at least 25% in principal amount of such Series of outstanding Securities may require the Company to pay immediately the principal amount plus accrued and unpaid interest on such Securities. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization referred to in Section 6.1(f) or (g) occurs with respect to the Company (or with respect to the Guarantor), the principal amount plus accrued and unpaid interest on the Companys Securities of that Series (or in the case of the Guarantor, all Securities) will become immediately due and payable without any action on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee .
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company, or any other obligor upon such Securities, wherever situated.
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If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim .
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (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 on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities .
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
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Section 6.6. Application of Money Collected .
Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of, premium, if any, and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits .
A Holder of Securities of any Series may pursue any remedy under this Indenture applicable to such Securities only if:
(a) the Holder gives the Trustee written notice of a continuing Event of Default for such Series of Securities;
(b) the Holders of at least 25% in principal amount of such outstanding Series of Securities make a written request to the Trustee to pursue the remedy;
(c) the Holders furnish to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request;
(d) the Trustee fails to act for a period of 60 days after receipt of notice and furnishing of indemnity; and
(e) during that 60-day period, the Holders of a majority in principal amount of the outstanding Securities of such Series do not give the Trustee a direction inconsistent with the request.
This provision does not, however, affect the right of a Holder of Securities to sue for enforcement of any overdue payment with respect to such Securities.
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Section 6.8. Unconditional Right of Holders to Receive Principal and Interest .
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9. Restoration of Rights and Remedies .
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative .
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver .
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12. Control by Holders .
The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
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(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability or that it will not be adequately indemnified against the costs, expenses and liabilities which might be incurred by it in complying with such direction.
Section 6.13. Waiver of Past Defaults .
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series ( provided , however , that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs .
All parties to this Indenture agree, and each Holder of any Security 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, 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 Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee .
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
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(b) Except during the continuance of an Event of Default with respect to the Securities of any Series:
(1) | the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
(2) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such certificates and opinions to determine whether, on their face, they appear to conform to the requirements of this Indenture. |
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) | this paragraph does not limit the effect of paragraph (b) of this Section 7.1; |
(2) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and |
(3) | the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.12. |
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Article VII.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on or investment of any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of, premium (if any) and interest on and Additional Amounts with respect to the Securities.
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Section 7.2. Rights of Trustee .
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, security or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an Officers Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such instruction, Officers Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents, attorneys, custodians or nominees and shall not be responsible for the misconduct or negligence of any agent, attorney, custodian or nominee appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture or with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Holders of a majority in aggregate principal amount of the relevant Series of Securities outstanding.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or the Guarantor, as applicable, shall be sufficient if signed by an Officer of the Company or the Guarantor, as applicable.
(f) Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.
(g) 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 Holders of Securities pursuant to the provisions of this Indenture, unless such Holders of Securities shall have offered to the Trustee, security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred therein or thereby.
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(h) The Trustee shall not be deemed to have notice of any Event of Default with respect to the Securities unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(i) The Trustee may at any time request, and the Company and the Guarantor shall each deliver an Officers Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any Person authorized to sign an Officers Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
(k) 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, each Agent, and each other agent, custodian and other Person employed to act hereunder.
Section 7.3. May Hold Securities .
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
Section 7.4. Trustees Disclaimer .
The Trustee makes no representation as to the validity, sufficiency or adequacy of any offering materials, this Indenture, the Securities or the Guarantees, it shall not be accountable for the Companys use of the proceeds from the Securities or any money paid to the Company or upon the Companys direction under any provision hereof, and it shall not be responsible for any statement or recital herein or any statement in any offering materials or the Securities other than its certificate of authentication.
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Section 7.5. Notice of Defaults .
If a Default or Event of Default with respect to the Securities of any Series occurs and is continuing and it is actually known to the Trustee, the Trustee shall give to Holders of Securities of such Series a notice of the Default or Event of Default within 90 days after the Trustee has knowledge of such Default or Event of Default in accordance with Section 7.2(h). Except in the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts or any sinking fund installment with respect to the Securities of such Series, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding the notice is in the interests of Holders of Securities of such Series to do so.
Section 7.6. Reports by Trustee to Holders .
Within 60 days after May 15 of each year after the execution of this Indenture, the Trustee shall give to Holders of each Series of Securities and the Company a brief report dated as of such reporting date that complies with TIA § 313(a); provided, however , that if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date with respect to any Series of Securities, no report need be transmitted to Holders of such Series or the Company. The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c) and 313(d).
A copy of each report at the time of its transmittal to Holders of a Series of Securities shall be filed by the Company with the SEC and each securities exchange, if any, on which the Securities of such Series are listed. The Company shall notify the Trustee if and when any Series of Securities is listed on or delisted from any securities exchange.
Section 7.7. Compensation and Indemnity .
The Company and the Guarantor, jointly and severally, agree to pay to the Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company or the Guarantor and the Trustee shall from time to time agree in writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company and the Guarantor agrees to reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
The Company and the Guarantor, jointly and severally, hereby indemnify the Trustee from, and agree to hold it harmless for, from and against any damage, cost, claim, loss, liability or expense (including, without limitation, the reasonable fees and expenses of the Trustees agents and counsel) incurred by it arising out of or in connection with its acceptance and administration of the trusts set forth under this Indenture, the performance of its obligations and/or the exercise of its rights hereunder, including, without limitation, the reasonable costs and expenses of defending itself against any claim, except as set forth in the next following paragraph. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company and the Guarantor, as applicable, shall defend the claim, with counsel reasonably acceptable to the Trustee, and the Trustee shall cooperate in the defense, unless, the Trustee, in its reasonable discretion, determines that any actual or potential conflict of interest may exist, in which case the Trustee may have separate counsel, reasonably acceptable to the Company and the Guarantor, as applicable, and the Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
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The Company shall not be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the Trustees own negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this Section 7.7, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of any Series. Such lien and the obligations of the Company and the Guarantor under this Section 7.7 shall survive the satisfaction and discharge of this Indenture, the payment of the Securities and/or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
Section 7.8. Replacement of Trustee .
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.8.
The Trustee may resign and be discharged at any time with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Securities of any Series may remove the Trustee with respect to the Securities of such Series by so notifying the Trustee and the Company. The Company may remove the Trustee for any or all Series of the Securities if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, with respect to the Securities of one or more Series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such Series). Within one year after the successor Trustee with respect to the Securities of any Series takes office, the Holders of a majority in principal amount of the Securities of such Series then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
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If a successor Trustee with respect to the Securities of any Series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the then outstanding Securities of such Series may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such Series.
If the Trustee with respect to the Securities of a Series fails to comply with Section 7.10, any Holder of Securities of such Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of such Series.
In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the retiring Trustee under this Indenture. The successor Trustee shall give a notice of its succession to Holders in accordance with Section 10.1. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
In case of the appointment of a successor Trustee with respect to the Securities of one or more Series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more Series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee. Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee shall have all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates. On request of the Company, or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates. Such retiring Trustee shall, however, have the right to deduct its unpaid fees and expenses, including attorneys fees.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.8, the obligations of the Company or the Guarantor under Section 7.7 shall continue for the benefit of the retiring Trustee or Trustees.
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Section 7.9. Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification .
There shall at all times be a Trustee hereunder which shall be a corporation or banking association organized and doing business under the laws of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA § 310(b).
Section 7.11. Preferential Collection of Claims Against Company .
The Trustee is subject to and shall comply with the provisions of TIA § 311(a), as if such section applied hereto, excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a), as if such section applied hereto, to the extent indicated therein.
ARTICLE VIII.
DISCHARGE OF INDENTURE
Section 8.1. Termination of Companys Obligations .
(a) This Indenture shall cease to be of further effect with respect to the Securities of a Series (except that all obligations of the Company and the Guarantor under Section 7.7, the Trustees and Paying Agents obligations under Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written demand of the Company shall execute instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such Series, when:
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(1) either
(A) all outstanding Securities of such Series theretofore authenticated and issued (other than destroyed, lost or stolen Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such Series not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and, in the case of clause (i), (ii) or (iii) above, the Company has irrevocably deposited or caused to be deposited with the Trustee as funds (immediately available to the Holders in the case of clause (i)) in trust for such purpose (x) cash in an amount, or (y) Government Obligations, maturing as to principal and interest at such times and in such amounts as will ensure the availability of cash in an amount or (z) a combination thereof which will be sufficient, in the opinion (in case of (y) or (z)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Securities of such Series for principal and interest to the date of such deposit (in the case of Securities which have become due and payable) or for principal, premium, if any, and interest to the Stated Maturity or redemption date, as the case may be; or
(C) the Company has properly fulfilled such other means of satisfaction and discharge, as contemplated by Section 2.2 to be applicable to the Securities of such Series,
(2) the Company has paid or caused to be paid all other sums payable by it hereunder with respect to the Securities of such Series; and
(3) the Company has delivered to the Trustee an Officers Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, together with an Opinion of Counsel to the same effect.
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(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series as contemplated by Section 2.2, the Company may be discharged from certain of its obligations under this Indenture ( covenant defeasance ) with respect to the Securities of a Series if:
(1) the Company has irrevocably deposited or caused to be irrevocably 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 Securities of such Series, (i) money, or (ii) Government Obligations with respect to such Series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such Series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such Series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such Government Obligations to the payment of said principal, premium (if any) and interest with respect to the Securities of such Series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers Certificate stating that all conditions precedent to covenant defeasance with respect to the Securities of such Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that the beneficial owners of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of the Companys exercise of its option under this Section 8.1(b) and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised;
(5) the Company has complied with any additional conditions specified pursuant to Section 2.2 to be applicable to covenant defeasance in respect of the Securities of such Series pursuant to this Section 8.1; and
(6) such deposit and covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in TIA § 310(b).
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In such event, this Indenture shall cease to be of further effect except that the Companys and the Guarantors obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 4.6, 5.1, 7.7 and 7.8, the Trustees and Paying Agents obligations in Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Securities of such Series are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Section 7.7 and the Trustees and Paying Agents obligations in Section 8.3 shall survive with respect to Securities of such Series.
In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Securities, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the issuers option.
(c) If the Company has previously complied or is concurrently complying with Section 8.1(b) (other than any additional conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant defeasance) with respect to Securities of a Series, then unless this Section 8.1(c) is specified as not being applicable to Securities of such Series as contemplated by Section 2.2, the Company may elect to be discharged ( legal defeasance ) from its obligations to make payments with respect to Securities of such Series, if:
(1) no Default or Event of Default under clauses (f) and (g) of Section 6.1 hereof shall have occurred at any time during the period ending on the 91st day after the date of deposit contemplated by Section 8.1(b) (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of such Series as contemplated by Section 2.2, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4) with respect to such legal defeasance, which opinion is based on (i) a private ruling of the Internal Revenue Service addressed to the Company or the Trustee, (ii) a published ruling of the Internal Revenue Service or (iii) a change in the applicable Federal income tax law (including regulations) after the date of this Indenture; the Company has complied with any other conditions specified pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of such Series pursuant to this Section 8.1(c); and
(3) the Company has delivered to the Trustee a Company Request requesting such legal defeasance of the Securities of such Series and an Officers Certificate stating that all conditions precedent with respect to such legal defeasance of the Securities of such Series have been complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company will be discharged from its obligations under this Indenture, except for the Companys obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, pay Additional Amounts, maintain paying agencies and hold moneys for payment in trust and to compensate and indemnify the Trustee, and the entire indebtedness of the Company evidenced by such Securities shall be deemed paid and discharged.
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(d) If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a Series are specified to be applicable to such Series as contemplated by Section 2.2, the Company may terminate any or all of its obligations under this Indenture with respect to its Securities of a Series and any or all of its obligations under the Securities of such Series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.2, to be applicable to the Securities of such Series.
(e) If Securities of any Series subject to subsections (a), (b), (c) or (d) of this Section 8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of the applicable trust arrangement shall provide for such redemption, and the Company shall make such arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption in the name, and at the expense, of the Company.
Section 8.2. Application of Trust Money .
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with it pursuant to Section 8.1 hereof. It shall apply the deposited money and the money from Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of premium (if any) and interest on and any Additional Amounts with respect to the Securities of the Series with respect to which the deposit was made.
Section 8.3. Repayment to Company .
The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
Section 8.4. Reinstatement .
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the
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obligations of the Company under this Indenture with respect to the Securities of such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money or Government Obligations in accordance with Section 8.1; provided , however , that if the Company has made any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders .
Without the consent of any Holder of Securities of a Series, the Company, the Guarantor and the Trustee may amend or supplement this Indenture, such Series of Securities or the Guarantee in the following circumstances:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption of the Companys obligations under this Indenture or the Securities or the Guarantors obligations under the Guarantee by a successor upon any merger, consolidation or asset transfer in accordance with Section 5.1 or to provide for the assumption of the Companys obligations under this Indenture by a subsidiary of the Guarantor in accordance with Section 5.2;
(3) to provide for uncertificated Securities in addition to or in place of Certificated Securities;
(4) to provide any security for or guarantees of the Companys Securities or for the addition of an additional obligor on the Companys Securities;
(5) to comply with any requirement to effect or maintain the qualification of this Indenture under the TIA, if applicable;
(6) to add covenants that would benefit the Holders of the outstanding Securities or to surrender any rights the Company has under this Indenture;
(7) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall not become effective with respect to any outstanding Securities of any Series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(8) to provide for the issuance of and establish forms and terms and conditions of a new series of Securities;
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(9) to issue additional Securities of any Series, provided that such additional Securities have the same terms (other than the issue date, date from which interest accrues, first interest payment date and restrictions on transfer) as, and be deemed part of the same Series as, the applicable Series of Securities to the extent required under this Indenture;
(10) to evidence and provide for the acceptance of appointment 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 trust by more than one trustee
(11) to add additional Events of Default with respect to the Companys Securities; and
(12) to make any change that does not adversely affect any of its outstanding Securities in any material respect.
Section 9.2. With Consent of Holders .
This Indenture or the Securities of a Series or the Guarantee may be amended or supplemented, and waivers may be obtained, with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities of such Series voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such Securities of a Series), and any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, interest or Additional Amounts, if any, on, such Securities of a Series, except a payment Default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Securities of such Series or applicable Guarantee may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Securities of such Series voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Securities of a Series).
The Holders of a majority in principal amount of the outstanding Securities of a Series issued by the Company may waive any existing or past Default or Event of Default with respect to those Securities. Notwithstanding the foregoing, those Holders may not, however, waive any Default or Event of Default in any payment on any Security.
For the avoidance of doubt, any amendment, supplement or waiver to any Series of Securities made with the consent of Holders of such Series of Securities, shall be made with respect to that Series of Securities only, and not any other Series of Securities.
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Section 9.3. Limitations .
Without the consent of each Holder of outstanding Securities of a Series, an amendment, supplement or waiver may not (with respect to any Securities of such Series held by a non-consenting Holder):
(1) reduce the amount of the Securities of such Series whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest on the Securities of such Series;
(3) reduce the principal of the Securities of such Series or change the Stated Maturity of the Securities of such Series;
(4) reduce any premium payable on the redemption of the Securities of such Series or change the time at which the Securities of such Series may or must be redeemed;
(5) change any obligation to pay Additional Amounts on the Securities of such Series;
(6) make payments on the Securities of such Series payable in currency other than as originally stated in such Securities;
(7) impair the Holders right to institute suit for the enforcement of any payment on the Securities of such Series;
(8) make any change in the percentage of principal amount of the Securities of such Series necessary to waive compliance with Sections 6.8 and 6.13 of this Indenture or to make any change in this Section 9.3(8); or
(9) waive a continuing Default or Event of Default regarding any payment on Securities of such Series.
In the event that consent is obtained from some of the Holders but not from all of the Holders with respect to any amendments or waivers pursuant to clauses (1) through (9) of this Section 9.3, new Securities of such Series with such amendments or waivers will be issued to those consenting Holders. Such new Securities shall have separate CUSIP numbers and ISINs from those Securities of such Series held by non-consenting Holders.
Section 9.4. Form of Amendments .
Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture.
Section 9.5. Revocation and Effect of Consents .
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holders Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the written notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
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Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (1) through (9) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holders Security.
Section 9.6. Notation on or Exchange of Securities .
The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for its Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee Protected .
In executing, or accepting the additional trusts created by, any supplemental indenture, amendment or waiver permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any supplemental indentures which affect the Trustees own rights, duties, immunities, or indemnities under this Indenture, the Securities or otherwise.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Notices .
Any request, direction, instruction, demand, document, notice or communication by the Company, the Guarantor or the Trustee to the other, or by a Holder to the Company or the Trustee, shall be in English and in writing and delivered in person, mailed by first-class mail, delivered via facsimile or delivered by overnight courier as follows:
if to the Company:
Schlumberger Investment SA
5 Avenue Gaston Diderich,
L-1420 Luxembourg
Luxembourg
Fax: +352 2744 8101
Attention: Sinan Sar
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And also to:
Schlumberger Limited
5599 San Felipe Street, 17th Floor
Houston, Texas 77056
Fax: (713) 513-2006
Attention: Vice President Treasurer
if to the Guarantor:
Schlumberger Limited
5599 San Felipe Street, 17th Floor
Houston, Texas 77056
Fax: (713) 513-2006
Attention: Vice President Treasurer
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street, Floor 7 East
New York, New York 10286
Fax: (212) 815-5704
Attention: Corporate Trust
Notices shall be effective upon the recipients actual receipt thereof. Any party by notice to the other parties may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to (i) a Securityholder of a Certificated Security shall be mailed by first-class mail to his address shown on the register kept by the Registrar and (ii) a Securityholder of a Global Security shall be delivered to the Depositary in accordance with its applicable procedures. Failure to give a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication to any Securityholder is given in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
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In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
Section 10.2. Communication by Holders with Other Holders .
Securityholders of a Series may communicate pursuant to TIA § 312(b), as if such section applied hereto, with other Securityholders of such Series with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Agents and anyone else shall have the protection of TIA § 312(c).
Section 10.3. Certificate and Opinion as to Conditions Precedent .
Upon any request or application by the Company or the Guarantor to the Trustee to take any action under this Indenture, the Company or the Guarantor, as applicable, shall furnish to the Trustee:
1. | an Officers Certificate (which shall include the statements set forth in Section 10.4) stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
2. | an Opinion of Counsel (which shall include the statements set forth in Section 10.4 hereof) stating that, in the opinion of such counsel, all such conditions precedent have been complied with. |
Section 10.4. Statements Required in Certificate or Opinion .
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.2 in accordance with TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include substantially:
1. | a statement that the Person making such certificate or opinion has read such covenant or condition; |
2. | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
3. | a statement that, in the opinion of such Person, he 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 |
4. | a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. |
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Section 10.5. Rules by Trustee and Agents .
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.6. Legal Holidays .
If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.7. No Personal Liability of Directors, Officers, Employees and Certain Others .
No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or the Guarantor, as such, will have any liability for or any obligations of the Company or the Guarantor under this Indenture or the Securities, or Guarantee or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 10.8. FATCA .
The Company agrees that if reasonably requested in writing by the Trustee, Paying Agent, Registrar or Transfer Agent (for purposes of this Section 10.8, the Trustee ), the Company shall provide such information as is reasonably necessary for the Trustee to determine that the Trustee is in compliance with the requirements of Sections 1471 to 1474 of the Internal Revenue Code of 1986, as amended, and any current or future regulations or official interpretations thereof (collectively, FATCA), in relation to a payment made under the Indenture, the Securities or any Guarantee; provided, however , that the Company shall not be required to provide any information that it is prohibited from disclosing. The Trustee shall be entitled to make any withholding or deduction from payments under the Indenture, the Securities or any Guarantee to the extent necessary to comply with FATCA. The Trustee shall have no liability for, and the Company shall indemnify and hold harmless the Trustee against any liability for, any withholding or deduction made by the Trustee, or any failure by the Trustee to make any withholding or deduction, in each case to the extent such action or failure to act was taken in reliance on the information provided by the Company pursuant to the first sentence of this Section 10.8.
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Section 10.9. Counterparts .
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 10.10. Governing Laws .
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE GUARANTEE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
THE APPLICATION OF THE PROVISIONS OF THE ARTICLES 86 TO 94-8 AND THE ARTICLES 96 AND 97 OF THE LUXEMBOURG LAW OF 10 AUGUST 1915 ON COMMERCIAL COMPANIES, AS AMENDED, IS HEREBY EXPRESSLY EXCLUDED.
Section 10.11. No Adverse Interpretation of Other Agreements .
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12. Successors .
All agreements of the Company and the Guarantor in this Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability .
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc .
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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Section 10.15. Judgment Currency .
Each of the Company and the Guarantor 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 or other amount 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 recipient 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 the rate of exchange used shall be the rate at which in accordance with normal banking procedures the recipient 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 Legal Holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.
Section 10.16. English Language .
This Indenture has been negotiated and executed in the English language. All certificates, reports, notices and other documents and communications delivered or delivered pursuant to this Indenture (including any modifications or supplements hereto), shall be in the English language, or accompanied by a certified English translation thereof. In the case of any document originally issued in a language other than English, the English language version of any such document shall for purposes of this Indenture, and absent manifest error, control the meaning of the matters set out therein.
Section 10.17. Submission to Jurisdiction; Appointment of Agent .
Any suit, action or proceeding against the Company or the Guarantor or its respective properties, assets or revenues with respect to this Indenture, the Securities or the Guarantee (a Related Proceeding ) may be brought in any state or Federal court in the Borough of Manhattan in The City of New York, New York, as the Person bringing such Related Proceeding may elect in its sole discretion. The Company and the Guarantor hereby consent to the non-exclusive jurisdiction of each such court for the purpose of any Related Proceeding and have irrevocably waived any objection to the laying of venue of any Related Proceeding brought in any such court and to the fullest extent they may effectively do so and the defense of an inconvenient forum to the maintenance of any Related Proceeding or any such suit, action or
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proceeding in any such court. The Company and the Guarantor hereby agree that service of all writs, claims, process and summonses in any Related Proceeding brought against them in the State of New York may be made upon Schlumberger Limited, 5599 San Felipe Street, 17 th Floor, Houston, Texas 77057 Attention: Vice President Treasurer (the Process Agent ). The Company has irrevocably appointed the Process Agent as its agent and true and lawful attorney in fact in its name, place and stead to accept such service of any and all such writs, claims, process and summonses, and hereby agrees that the failure of the Process Agent to give any notice to it of any such service of process shall not impair or affect the validity of such service or of any judgment based thereon. The Company and the Guarantor hereby agree to have an office or to maintain at all times an agent with offices in the United States of America to act as Process Agent. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such writs, process or summonses in any other manner permitted by applicable law.
Section 10.18. Waiver of Immunity .
To the extent that the Company or the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or execution, on the ground of sovereignty or otherwise) with respect to itself or its property, it hereby irrevocably waives, to the fullest extent permitted by applicable law, such immunity in respect of its obligations under this Indenture, Securities and/or the Guarantees.
Section 10.19. Waiver of Jury Trial .
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 10.20. Trust Indenture Act Controls .
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by operation of TIA § 318(c), the imposed duties shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
Schlumberger Investment SA | ||
By: |
/s/ Philippe Petre | |
Name: Philippe Petre |
||
Its: Director B |
||
Schlumberger Limited |
||
By: |
/s/ Imran Kizilbash |
|
Name: Imran Kizilbash |
||
Its: Vice President Treasurer |
Base Indenture
The Bank of New York Mellon as Trustee, Registrar, Paying Agent and Transfer Agent |
||
By: |
/s/ Laurence J. OBrien | |
Name: Laurence J. OBrien |
||
Title: Vice President |
Base Indenture
Exhibit 4.2
Schlumberger Investment SA
3.650% Senior Notes due 2023
Irrevocably and Unconditionally Guaranteed by
Schlumberger Limited
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 3, 2013
The Bank of New York Mellon,
as Trustee, Registrar, Paying Agent
and Transfer Agent
First Supplemental Indenture (this First Supplemental Indenture ) dated as of December 3, 2013 by and among Schlumberger Investment SA, a public limited liability company ( société anonyme ) organized under the laws of the Grand Duchy of Luxembourg having its registered address at 5 Avenue Gaston Diderich, L-1420 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 163.122 (the Company ), Schlumberger Limited (the Guarantor ), and The Bank of New York Mellon, as trustee (the Trustee ), registrar, paying agent, and transfer agent.
RECITALS
A. The Company, the Guarantor, and the Trustee, executed and delivered an Indenture, dated as of December 3, 2013 (the Base Indenture ), to provide for the issuance by the Company from time to time of debentures, notes or other debt instruments evidencing its indebtedness. The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is herein referred to as the Indenture.
B. The Company has authorized the issuance of $1,500,000,000 principal amount of 3.650% Senior Notes due 2023 (the Notes ).
C. The Company and the Guarantor desire to enter into this First Supplemental Indenture pursuant to Section 9.1 of the Base Indenture to establish the terms of the Notes and in accordance with Section 2.2 of the Base Indenture and to establish the form of the Notes in accordance with Sections 2.2.13 and 2.3 of the Base Indenture.
D. All things necessary to make this First Supplemental Indenture a valid and legally binding agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the Holders from time to time of the Notes as follows:
ARTICLE I
Section 1.1. Additional Defined Terms .
As used herein, the following defined terms shall have the following meanings with respect to the Notes only:
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange at the relevant time.
Certificated Note means a definitive note in registered non-global certificated form.
Global Note Legend means the legend set forth in Section 1.4.1 hereof, which is required to be placed on all Global Notes issued under the Indenture.
Global Notes means, individually and collectively, each of the global notes, substantially in the form of Exhibit A hereto and that bears the Global Note Legend, issued in accordance with Sections 2.1 of the Base Indenture and 1.3 hereof.
Indirect Participant means any entity that, with respect to the Depositary, clears through or maintains a direct or indirect custodial relationship with a Participant.
Interest Payment Date means the stated due date of an installment of interest on the Notes set forth in the Notes.
Note Guarantee means the Guarantee by the Guarantor of the Companys obligations under the Indenture and the Notes, pursuant to the provisions of the Indenture.
Participant means, with respect to the Depositary, a Person who has an account with the Depositary.
Redemption Date means, when used with respect to any Note to be redeemed, the date fixed for such redemption by or pursuant to the Indenture.
Securities Act means the Securities Act of 1933, as amended.
Section 1.2. Terms of the Notes .
The following terms relate to the Notes:
(1) The Notes shall constitute a separate Series of Securities under the Base Indenture having the title 3.650% Senior Notes due 2023.
(2) The aggregate principal amount of the Notes (the Initial Notes ) that may be initially authenticated and delivered under the Indenture shall be $1,500,000,000 of Notes. The Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case Additional Notes ) having the same ranking and the same interest rate, maturity and other terms as the Initial Notes. Any Additional Notes and the Initial Notes shall constitute a single Series under the Indenture and all references to the Notes shall include the Initial Notes and any Additional Notes, unless the context otherwise requires, provided, however, that a separate CUSIP or ISIN shall be issued for the Additional Notes, unless the Initial Notes and the Additional Notes are fungible for U.S. federal income tax purposes. Such Additional Notes will also be guaranteed by the Guarantor (with the same ranking as the Note Guarantee for the Initial Notes). The aggregate principal amount of the Additional Notes that may be issued shall be unlimited.
(3) The entire outstanding principal of the Notes shall be payable on December 1, 2023.
(4) The rate at which the Notes shall bear interest shall be 3.650% per year. The date from which interest shall accrue on the Notes shall be December 3, 2013, or the most recent Interest Payment Date to which interest has been paid or provided for. The Interest Payment Dates for each of the Notes shall be June 1 and December 1 of each year, beginning
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June 1, 2014. Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the May 15 and November 15 prior to each Interest Payment Date (whether or not a Business Day). The basis upon which interest shall be calculated shall be that of a 360day year consisting of twelve 30day months.
(5) The Notes shall be issuable in whole in the form of one or more registered Global Notes, and the Depositary for such Global Notes shall be The Depository Trust Company, New York, New York ( DTC ). The Notes shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. The Notes shall be denominated in Dollars and shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
(6) The Notes may be redeemed at the option of the Company or the Guarantor prior to the Maturity date, as provided in Article III of the Base Indenture and under the caption Optional Redemption in the Notes.
(7) The Notes will not have the benefit of any sinking fund.
(8) Except as provided in Sections 1.3 and 1.5 hereof, the Holders of the Notes shall have no special rights in addition to those provided in the Base Indenture upon the occurrence of any particular events.
(9) The Notes will be senior unsecured obligations of the Company and will rank equally and ratably in right of payment to all of the Companys other unsecured indebtedness.
(10) The Notes are not convertible into shares of common stock or other securities of the Company.
(11) The restrictive covenants set forth in Article IV of the Base Indenture shall be applicable to the Notes.
Section 1.3. Transfer and Exchange .
This Section 1.3 shall replace Sections 2.7 and the first two paragraphs of Section 2.14.2 of the Base Indenture with respect to the Notes only.
1.3.1. Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Certificated Notes if:
(a) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary;
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(b) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Certificated Notes and delivers a written notice to such effect to the Trustee; or
(c) there has occurred and is continuing a Default or Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (a), (b) or (c) above, Certificated Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.8 and 2.11 of the Base Indenture. Except as otherwise permitted and/or required by the Indenture, every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 1.3 or Section 2.8 or 2.11 of the Base Indenture, shall be authenticated and delivered in the form of, and shall be, a Global Note for purposes of the Indenture with such modifications or revisions as may be appropriate or necessary to reflect the ownership thereof by an investor instead of DTC or another Depositary. A Global Note may not be exchanged for another Note other than as provided in this Section 1.3.1, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 1.3.2 hereof.
1.3.2. Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of the Indenture and the Applicable Procedures. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (a) or (b) below, as applicable, as well as one or more of the other following subparagraphs, as applicable.
(a) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 1.3.2(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in Global Notes . In connection with all transfers and exchanges of beneficial interests that are not subject to Section 1.3.2(a) above, the transferor of such beneficial interest must deliver to the Registrar either:
(i) both:
(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2) instructions given by the Depositary in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
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(ii) both:
(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Certificated Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Certificated Note shall be registered.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in the Indenture and the Notes, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 1.3.4 hereof.
1.3.3. Transfer and Exchange of Certificated Notes for Certificated Notes . Upon request by a Holder of Certificated Notes and such Holders compliance with the provisions of this Section 1.3.3, the Registrar will register the transfer or exchange of Certificated Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Certificated Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, reasonably required by the Registrar.
1.3.4. Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Certificated Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interests in another Global Note or for Certificated Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
1.3.5. General Provisions Relating to Transfers and Exchanges .
(a) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Certificated Notes upon receipt of a Company Order in accordance with Section 2.3 of the Base Indenture.
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(b) No service charge will be made to a holder of a beneficial interest in a Global Note, a Holder of a Global Note or to a Holder of a Certificated Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any stamp duty, stamp duty reserve tax, documentary, transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11 and 3.6 of the Base Indenture).
(c) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(d) All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange.
(e) Neither the Registrar nor the Company will be required:
(i) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.2 of the Base Indenture and ending at the close of business on the day of selection;
(ii) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or
(iii) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
(f) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, premium, if any, and interest and Additional Amounts, if any, on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
Section 1.4. Legends .
This Section 1.4 shall replace Section 2.14.3 of the Base Indenture with respect to the Notes only.
1.4.1. Legends . The following legend will appear in substantially the following form on the face of each Global Note issued under the Indenture unless specifically stated otherwise in the applicable provisions of the Indenture.
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THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.3 OF THE FIRST SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 1.3 OF THE FIRST SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT TO A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN, BY A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN TO A DEPOSITARY OR TO ANOTHER NOMINEE OR CUSTODIAN OF SUCH DEPOSITARY, OR BY SUCH CUSTODIAN OR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR CUSTODIAN OR A NOMINEE THEREOF. ACCORDINGLY, UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 1.5. Note Guarantee .
1.5.1. Guarantee .
(a) Subject to this Section 1.5.1, the Guarantor hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(i) the principal of, premium on, if any, and interest, if any, on, the Notes and all other amounts payable by the Company under the Indenture will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest, if any, on, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
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(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will be obligated to pay the same immediately. The Guarantor agrees that its Note Guarantee is a guarantee of payment and not a guarantee of collection.
(b) The Guarantor hereby agrees that its obligations under its Note Guarantee are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Note Guarantee will not be discharged with respect to the Notes except by complete performance of the obligations contained in the Notes and the Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid either to the Trustee or such Holder, the Guarantors Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders with respect to the Notes in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby with respect to the Notes. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Base Indenture for the purposes of the Guarantors Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article VI of the Base Indenture, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of the Guarantors Note Guarantee.
1.5.2. Limitation on Guarantor Liability . The Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of the Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to its Note Guarantee. To effectuate
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the foregoing intention, the Trustee, the Holders and the Guarantor hereby irrevocably agree that the obligations of the Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guarantor that are relevant under such laws, result in the obligations of the Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
1.5.3. Execution and Delivery of Note Guarantee . The terms of the Note Guarantee set forth in Section 1.5.1 do not require the Guarantor to evidence its Note Guarantee through any notation of such Note Guarantee endorsed by an Officer of the Guarantor on each Note authenticated and delivered by the Trustee. This First Supplemental Indenture will be executed on behalf of the Guarantor by one of its Officers.
The Note Guarantee set forth in Section 1.5.1 hereof will remain in full force and effect without any requirement to endorse on each Note a notation of such Note Guarantee.
If an Officer of the Guarantor whose signature is on this First Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof, will constitute due delivery of the Note Guarantee set forth in this First Supplemental Indenture on behalf of the Guarantor.
1.5.4. Releases .
Upon legal defeasance or covenant defeasance with respect to the Notes in accordance with Article VIII of the Base Indenture or satisfaction and discharge of the Indenture, the Guarantor will be released and relieved of any obligations with respect to the Notes under its Note Guarantee to the extent set forth in the Indenture.
If the Guarantor is not released from its obligations under its Note Guarantee as provided in this Section 1.5.4 the Guarantor will remain liable for the full amount of principal of, premium on, if any, and interest, if any, on, the Notes and for the other obligations of the Guarantor under the Indenture as provided in this Section 1.5.
ARTICLE II
MISCELLANEOUS
Section 2.1. Definitions .
Capitalized terms used but not defined in this First Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.
Section 2.2. Confirmation of Indenture .
The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture, this First Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
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Section 2.3. Governing Law .
THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES AND THE NOTE GUARANTEE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES OR THE NOTE GUARANTEE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
THE APPLICATION OF THE PROVISIONS OF THE ARTICLES 86 TO 94-8 AND THE ARTICLES 96 AND 97 OF THE LUXEMBOURG LAW OF 10 AUGUST 1915 ON COMMERCIAL COMPANIES, AS AMENDED, IS HEREBY EXPRESSLY EXCLUDED.
Section 2.4. Severability .
In case any provision in this First Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.5. Counterparts .
This First Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 2.6. No Benefit .
Nothing in this First Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns, and the Holders of the Notes, any benefit or legal or equitable rights, remedy or claim under this First Supplemental Indenture or the Base Indenture.
Section 2.7. No Responsibility of the Trustee .
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of the Notes, the Note Guarantee or this First Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed all as of the day and year first above written.
SCHLUMBERGER INVESTMENT SA |
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By: |
/s/ Philippe Petre |
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Name: Philippe Petre |
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Title: Director B |
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SCHLUMBERGER LIMITED |
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By: |
/s/ Imran Kizilbash |
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Name: Imran Kizilbash |
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Title: Vice President Treasurer |
First Supplemental Indenture
The Bank of New York Mellon as Trustee, Registrar, Paying Agent and Transfer Agent |
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By: |
/s/ Laurence J. OBrien |
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Name: Laurence J. OBrien |
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Title: Vice President |
First Supplemental Indenture
EXHIBIT A
FORM OF 3.650% SENIOR NOTES DUE 2023
[Insert the Global Note legend]
3.650% SENIOR NOTES DUE 2023
No. [ ] |
$[ ] |
CUSIP No. 806854AH8
ISIN: US806854AH81
SCHLUMBERGER INVESTMENT SA
promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Dollars on December 1, 2023.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Each Holder of this Note (each as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holders behalf to be bound by such provisions. Each Holder of this Note hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. 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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.3 of the Base Indenture.
Date: December 3, 2013
SCHLUMBERGER INVESTMENT SA |
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By: |
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Name: Title: |
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CERTIFICATE OF AUTHENTICATION
This is one of the 3.650% Senior Notes due 2023 issued by Schlumberger Investment SA of the Series designated therein referred to in the within-mentioned Indenture.
Date: December 3, 2013
THE BANK OF NEW YORK MELLON as Trustee |
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By: |
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Authorized Signatory |
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Schlumberger Investment SA
3.650% Senior Notes due 2023
This note is one of a duly authorized Series of debt securities of Schlumberger Investment SA, a public limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg having its registered address at 5 Avenue Gaston Diderich, L-1420 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 163.122 (the Company ), issued or to be issued in one or more Series under and pursuant to an Indenture for the Companys debentures, notes or other debt instruments evidencing its indebtedness, dated as of December 3, 2013 (the Base Indenture ), duly executed and delivered by and among the Company, Schlumberger Limited, a corporation with limited liability governed by the laws of Curaçao (the Guarantor ) and The Bank of New York Mellon as trustee (the Trustee ), registrar, paying agent and transfer agent, as supplemented by the First Supplemental Indenture, dated as of December 3, 2013 (the First Supplemental Indenture ), by and among the Company, the Guarantor and the Trustee. The Base Indenture as supplemented and amended by the First Supplemental Indenture is referred to herein as the Indenture . By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in Series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This note is one of the Series designated on the face hereof (individually, a Note , and collectively, the Notes ), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties and immunities of the Trustee, the Company and the Holders of the Notes (the Holders ). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the First Supplemental Indenture, as applicable.
1. Interest . The rate at which the Notes shall bear interest shall be 3.650% per year. The date from which interest shall accrue on the Notes shall be December 3, 2013, or the most recent Interest Payment Date to which interest has been paid or provided for. The Interest Payment Dates for the Notes shall be June 1 and December 1 of each year, beginning June 1, 2014. Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the May 15 and November 15 prior to each Interest Payment Date. The basis upon which interest shall be calculated shall be that of a 360day year consisting of twelve 30day months.
2. Method of Payment . The Company will pay interest on the Notes (except defaulted interest), if any, to the persons in whose name such Notes are registered at the close of business on the regular record date referred to on the facing page of this Note for such interest payment. In the event that the Notes or a portion thereof are called for redemption and the Redemption Date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Notes will be paid upon presentation and surrender of such Notes as provided in the Indenture. The principal of and the interest on the Notes shall be payable in Dollars, at the office or agency of the Company maintained for that purpose in accordance with the Indenture, or at the Companys option, by check mailed to the address of the registered Holder or, with respect to any Global Note or upon application by the Holder of a definitive, non-global Note to the specified office of any Paying Agent not less than 15 days before the due date of any payment, by wire transfer to a U.S. dollar account.
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3. Registrar, Paying Agent, and Transfer Agent . Initially, The Bank of New York Mellon will act as Registrar; the initial Paying Agent will be The Bank of New York Mellon, in New York; the initial Transfer Agent will be The Bank of New York Mellon, in New York. The Company may change or appoint any Registrar, Paying Agent or Transfer Agent without notice to any Holder.
4. Indenture . The Notes are senior unsecured obligations of the Company and constitute the Series designated on the face hereof as the 3.650% Senior Notes due 2023, initially limited to $1,500,000,000 in aggregate principal amount. The Company will furnish to any Holders upon written request and without charge a copy of the Base Indenture and the First Supplemental Indenture. Requests may be made to: Schlumberger Limited, 5599 San Felipe Street, 17 th Floor, Houston, Texas 77057 Attention: Vice President Treasurer.
5. Optional Redemption . At the Companys option, the Notes may be redeemed or purchased, in each case, in whole or in part at any time or from time to time prior to the Stated Maturity of the Notes, as provided in Article III of the Base Indenture, Section 1.2 of the First Supplemental Indenture and in this Section 5.
Prior to September 1, 2023, the Notes may be redeemed in whole at any time or in part from time to time, at the Companys option, at a redemption price equal to the greater of:
(a) 100% of the principal amount of such Notes then outstanding, and
(b) the sum of the present values of the remaining scheduled payments of principal and interest on such Notes to be redeemed (not including any portion of such payments of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable treasury rate plus 15 basis points, plus accrued and unpaid interest on the principal amount being redeemed to the redemption date.
treasury rate means, with respect to any redemption date:
(a) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designed H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the comparable treasury issue (if no maturity is within three months before or after the remaining life (as defined below), yields for the two published maturities most closely corresponding to the comparable treasury issue will be determined and the treasury rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month), or
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(b) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the comparable treasury issue, calculated using a price for the comparable treasury issue (expressed as a percentage of its principal amount) equal to the comparable treasury price for such redemption date.
The treasury rate will be calculated on the third Business Day preceding the redemption date.
Notwithstanding the foregoing, commencing on September 1, 2023, the Notes are redeemable at the Companys option, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus in each case accrued and unpaid interest on the principal amount being redeemed to the redemption date.
comparable treasury issue means the U.S. Treasury security selected by an independent investment banker as having a maturity comparable to the remaining term (remaining life) of the Notes to be redeemed 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 such Notes.
comparable treasury price means (1) the average of four reference treasury dealer quotations for such redemption date, after excluding the highest and lowest reference treasury dealer quotations, or (2) if the independent investment banker obtains fewer than four such reference treasury dealer quotations, the average of all such quotations.
independent investment banker means either Citigroup Global Markets Inc., J.P. Morgan Securities LLC or Deutsche Bank Securities Inc., or, if these firms are unwilling or unable to select the comparable treasury issue, an independent investment banking institution of national standing appointed by the Company.
reference treasury dealer means (1) Citigroup Global Markets Inc., J.P. Morgan Securities LLC or Deutsche Bank Securities Inc. 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 Company will substitute therefor another primary treasury dealer, and (2) any other primary treasury dealer selected by the independent investment banker after consultation with the Company.
reference treasury dealer quotations means, with respect to each reference treasury dealer and any redemption date, the average, as determined by the independent investment banker, of the bid and asked prices for the comparable treasury issue (express in each case as a percentage of its principal amount) quoted in writing to the independent investment banker at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.
For the avoidance of doubt, the Trustee shall have no obligation to determine or calculate any rate, price or amount in respect of any optional redemption under the Indenture.
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The Notes will not have the benefit of any sinking fund.
6. Denominations, Transfer, Exchange . The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
7. Persons Deemed Owners . The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.
8. Repayment to the Company . The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
9. Amendment, Supplements and Waivers . Without the consent of any Holder of Notes, the Company, the Guarantor and the Trustee may amend or supplement the Indenture, the Notes or the Note Guarantee in certain circumstances, including: (a) to cure any ambiguity, omission, defect or inconsistency; (b) to provide for the assumption of the Companys obligations under the Indenture and the Notes or the Guarantors obligations under the Note Guarantee by a successor upon any merger, consolidation or asset transfer or to provide for the assumption of the Companys obligations under the Indenture by a Subsidiary of the Guarantor in accordance with Section 5.2 of the Base Indenture; (c) to provide for uncertificated Notes in addition to or in place of Certificated Notes; (d) to provide any security for or guarantees of the Notes or for the addition of an additional obligor on the Notes; (e) to comply with any requirement to effect or maintain the qualification of the Indenture under the TIA; (f) to add covenants that would benefit the Holders of the outstanding Notes or to surrender any rights the Company has under the Indenture; (g) to change or eliminate any of the provisions of the Indenture, provided that any such change or elimination shall not become effective with respect to any outstanding Notes created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; (h) to provide for the issuance of and establish forms and terms and conditions of a new Series of debt securities; (i) to issue additional Notes, provided
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that such additional Notes have the same terms as, and be deemed part of the same Series as, the applicable Series of Notes to the extent required under the Indenture; (j) to evidence and provide for the acceptance of appointment by a successor trustee with respect to the Notes and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trust by more than one trustee; (k) to add additional Events of Default with respect to Notes; and (l) to make any change that does not adversely affect any of its outstanding Notes in any material respect. The Holders of a majority in principal amount of the outstanding Notes issued by the Company may waive any existing or past Default or Event of Default with respect to those Notes. Notwithstanding the foregoing, those Holders may not, however, waive any Default or Event of Default in any payment on any Note.
The Indenture or the Notes or the Note Guarantee may be amended or supplemented, and waivers may be obtained, with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such Notes), and any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, interest or Additional Amounts, if any, on, such Notes, except a payment Default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture or the Notes or the Note Guarantee may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes).
10. Defaults and Remedies . If an Event of Default for the Companys Notes occurs and is continuing (other than an Event of Default referred to in Section 6.1(f) or (g) of the Base Indenture), the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may require the Company to pay immediately the principal amount plus accrued and unpaid interest on such Notes. If an Event of Default referred to in Section 6.1(f) or (g) of the Base Indenture occurs with respect to the Company (or with respect to the Guarantor), the principal amount plus accrued and unpaid interest on the Companys Notes will become immediately due and payable without any action on the part of the Trustee or any Holder.
11. Trustee May Hold Notes . The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11 of the Base Indenture.
12. No Personal Liability of Directors, Officers, Employees and Certain Others . No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or the Guarantor, as such, will have any liability for or any obligations of the Company or the Guarantor under the Indenture or the Notes, or the Note Guarantee or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
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13. Discharge of Indenture . The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication . This Note shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Note.
15. Additional Amounts . The Company is obligated to pay Additional Amounts on this Note to the extent provided in the Indenture.
16. Abbreviations . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
Governing Law . THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THE NOTE GUARANTEE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
THE APPLICATION OF THE PROVISIONS OF THE ARTICLES 86 TO 94-8 AND THE ARTICLES 96 AND 97 OF THE LUXEMBOURG LAW OF 10 AUGUST 1915 ON COMMERCIAL COMPANIES, AS AMENDED, IS HEREBY EXPRESSLY EXCLUDED.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:
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(Insert assignees legal name) |
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(Insert assignees soc. sec. or tax I.D. no.) |
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(Print or type assignees name, address and zip code) |
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date:
Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee: |
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(Signature must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee)) |
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SCHEDULE OF TRANSFER AND EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global Note or Certificated Note for an interest in this Global Note, have been made:
Principal Amount of | ||||||||
Amount of decrease in | Amount of increase in | this Global Note | Signature of | |||||
Date of Increase or | Principal Amount of | Principal Amount of | following such | authorized officer | ||||
Decrease |
this Global Note |
this Global Note | decrease (or increase) | of Registrar |
A-11
Exhibit 5.1
|
ONE SHELL PLAZA 910 LOUISIANA HOUSTON, TEXAS 77002-4995
TEL +1 713.229.1234 FAX +1 713.229.1522 BakerBotts.com |
ABU DHABI AUSTIN BEIJING BRUSSELS DALLAS DUBAI HONG KONG |
HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIO DE JANEIRO RIYADH WASHINGTON |
December 3, 2013
Schlumberger Investment SA
5599 San Felipe, 17th Floor
Houston, Texas 77056
Schlumberger Limited
5599 San Felipe, 17th Floor
Houston, Texas 77056
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-3 (Registration No. 333-190822) (the Registration Statement) filed by Schlumberger Investment SA, a public company limited by shares (société anonyme) organized under the laws of the Grand Duchy of Luxembourg (the Company) and Schlumberger Limited, a company organized under the laws of Curaçao (the Guarantor), with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act), relating to the registration under the Act of (i) senior unsecured debt securities of the Company (Debt Securities) and (ii) guarantees of the Debt Securities by the Guarantor, that may be issued and sold from time to time pursuant to Rule 415 under the Act, certain legal matters in connection with the Notes and the Guarantee (as defined below) are being passed upon for you by us. At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the Current Report on Form 8-K filed by the Guarantor on December 3, 2013 the Form 8-K).
The Registration Statement has been filed with the Commission and became effective upon filing. A related prospectus dated August 26, 2013 and prospectus supplement dated November 25, 2013 relating to the Notes and the Guarantee (collectively, the Prospectus) have been filed by the Company and the Guarantor with the Commission pursuant to Rule 424(b) under the Act.
On November 25, 2013, the Company and the Guarantor entered into an underwriting agreement (the Underwriting Agreement) with Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters (collectively, the Underwriters), providing for the issuance and sale by the Company to the Underwriters of $1,500,000,000 aggregate principal amount of the Companys 3.650% Senior Notes due 2023 (the Notes), all to be fully and unconditionally guaranteed (the Guarantee) by the Guarantor.
In our capacity as your counsel in the connection referred to above, we have examined (i) the Articles of Incorporation of the Company, (ii) the Articles of Incorporation and Amended and Restated Bylaws of the Guarantor, each as amended to date (together, the Guarantor Charter Documents), (iii) a form of the indenture to be executed by the Company, the Guarantor and the trustee thereunder (the Base Indenture), (iv) a form of the first
Schlumberger Investment SA Schlumberger Limited |
December 3, 2013 |
supplemental indenture to the Base Indenture (the First Supplemental Indenture and, together with the Base Indenture, the Indenture), pursuant to which the Notes are to be issued, (v) the Registration Statement, (vi) the Prospectus, (vii) the Underwriting Agreement, (viii) the originals, or copies certified or otherwise identified, of corporate records of each of the Company and the Guarantor, and (ix) certificates of public officials and of representatives of each of the Company and the Guarantor, statutes and other instruments and documents as a basis for the opinions hereinafter expressed.
In giving this opinion, we have relied on certificates of officers of each of the Company and the Guarantor and of public officials with respect to the accuracy of the material factual matters contained in such certificates and we have assumed, without independent investigation, that all signatures on documents we have examined are genuine, all documents submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies of original documents conform to the original documents and all these original documents are authentic, and all information submitted to us was accurate and complete.
In connection with this opinion, we have assumed that the Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus.
On the basis of the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that, with respect to Notes and the Guarantee, when such Notes have been duly executed, authenticated, issued and delivered in accordance with both the provisions of the Indenture and the provisions of the Underwriting Agreement upon payment of the consideration therefor provided for therein, such Notes, and the Guarantee, will constitute legal, valid and binding obligations of the Company and the Guarantor, respectively, enforceable against the Company and the Guarantor, respectively, except as the enforceability thereof is subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws relating to or affecting creditors rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) any implied covenants of good faith and fair dealing.
The opinions set forth above are limited to the applicable laws of the State of New York and the applicable federal laws of the United States.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Form 8-K and to the reference to us under Legal Matters in the Prospectus. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Schlumberger Investment SA Schlumberger Limited |
December 3, 2013 |
Very truly yours, |
/s/ Baker Botts L.L.P. |
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Exhibit 5.2
|
OFFICE ADDRESS |
18-20, rue Edward Steichen L-2540 LUXEMBOURG Luxembourg - Kirchberg |
||
TELEPHONE |
+352 466 230 |
|||
FAX |
+352 466 234 |
|||
INTERNET |
www.loyensloeff.lu |
Schlumberger Investment SA
5, avenue Gaston Diderich
L-1420 Luxembourg
December 3, 2013
Dear Sirs, Dear Madam
1 | Introduction |
We have acted as special legal counsel in the Grand Duchy of Luxembourg ( Luxembourg ) to Schlumberger Investment SA, a public limited liability company ( société anonyme ) organized under the laws of the Grand Duchy of Luxembourg with registered office at 5, avenue Gaston Diderich, L-1420 Luxembourg, registered with the Luxembourg Register of Commerce and Companies ( RCS ) under number B 163.122 (the Company ), in connection with the filing by the Company and Schlumberger Limited, a company organized under the laws of Curaçao ( Schlumberger ) of a Registration Statement on Form S-3 (Registration Statement No. 333-190822) (the Registration Statement ) with the United States Securities and Exchange Commission (the Commission ) under the United States Securities Act of 1933, as amended (the Act ) and certain matters in connection with the Notes and the Guarantee (as defined below).
The Registration Statement has been filed with the Commission and became effective upon filing. A related prospectus dated August 26, 2013 and prospectus supplement dated November 25, 2013 relating to the Notes and the Guarantee (collectively, the Prospectus ) have been filed by the Company and Schlumberger with the Commission pursuant to Rule 424(b) under the Act.
On November 25, 2013, the Company and Schlumberger entered into an underwriting agreement (the Underwriting Agreement ) with Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters (the Underwriters ), providing for the issuance and sale by the Company to the Underwriters of $1,500,000,000 aggregate principal amount of the Companys 3.650% Senior Notes due 2023 (the Notes ), all to be fully and unconditionally guaranteed (the Guarantee ) by Schlumberger, as guarantor.
All services are provided by Loyens & Loeff Luxembourg S.à r.l., a private limited liability company ( société à responsabilité limitée ) having its registered office at 18-20, rue Edward Steichen, L-2540 Luxembourg, Luxembourg, with a share capital of Eur 25.200 and registered with the Luxembourg Register of Commerce and Companies ( Registre du commerce et des sociétés, Luxembourg) under number B 174.248. All its services are governed by its General Terms and Conditions, which include a limitation of liability, the applicability of Luxembourg law and the competence of the Luxembourg courts. These General Terms and Conditions may be consulted via www.loyensloeff.lu.
AMSTERDAM ARNHEM BRUSSELS LUXEMBOURG ROTTERDAM ARUBA |
CURACAO DUBAI FRANKFURT GENEVA HONG KONG LONDON NEW YORK PARIS SINGAPORE TOKYO ZURICH |
2 | Scope of Inquiry |
For the purpose of this Opinion, we have examined a copy of the following documents:
(a) | an executed copy of the Registration Statement, filed with the Commission under the Act, relating to, inter alia , the registration under the Act of senior unsecured debt securities of the Company (the Debt Securities ) and guarantees of the Debt Securities by Schlumberger, dated August 26, 2013; |
(b) | the Prospectus; |
(c) | the Indenture dated December 3, 2013 (the Base Indenture ) among the Company, Schlumberger, as guarantor, and The Bank of New York Mellon, as trustee, registrar, paying agent and transfer agent (the Trustee ), in the form of Exhibit 4.1 to the Current Report on Form 8-K; |
(d) | the First Supplemental Indenture dated December 3, 2013 (the First Supplemental Indenture and, together with the Base Indenture, the Indenture ) among the Company, Schlumberger and the Trustee, in the form of Exhibit 4.2 to the Current Report on Form 8-K, pursuant to which the Notes will be issued; |
(e) | the Underwriting Agreement; |
(f) | the consolidated text of the articles of association of the Company as at September 2, 2011 drawn up by Maître Martine Schaeffer, notary in Luxembourg (the Articles ); |
(g) | the resolutions of the board of directors of the Company dated November 14, 2013 (the Directors Resolutions ); |
(h) | an excerpt pertaining to the Company delivered by the RCS, dated December 3, 2013 (the Excerpt ); and |
(i) | a certificate of absence of judicial decisions ( certificat de non-inscription dune décision judiciaire ) pertaining to the Company, delivered by the RCS on December 3, 2013, with respect to the situation of the Company as at December 2, 2013 (the RCS Certificate ). |
3 | Assumptions |
We have assumed the following:
3.1 | the genuineness of all signatures, stamps and seals of the persons purported to have signed the relevant documents; |
3.2 | the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies; |
3.3 | all factual matters and statements relied upon or assumed in this Opinion are and were true and complete on the date of execution of the Registration Statement (and any document in connection therewith) and on the date of this Opinion; |
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3.4 | the due compliance with all requirements (including, without limitation, the obtaining of the necessary consents, licences, approvals and authorisations, the making of the necessary filings, registrations and notifications and the payment of stamp duties and other taxes) under any laws (other than, but only to the extent expressly opined herein, Luxembourg laws) in connection with the issue of the Notes, the execution of and performance under the Registration Statement, the Indenture, the Underwriting Agreement and the Prospectus (and any document in connection therewith); |
3.5 | with respect to the domiciliation of the Company in Luxembourg, proper compliance with, and adherence to, the Luxembourg law dated May 31, 1999 concerning the domiciliation of companies, as amended; |
3.6 | the Company has its central administration ( administration centrale ) and, for the purposes of the Council Regulation (EC) No. 1346/2000 of May 29, 2000 on insolvency proceedings (the EU Insolvency Regulation ), the centre of its main interests ( centre des intérêts principaux ) at the place of its registered office ( siège statutaire ) in Luxembourg and has no establishment (as defined in the EU Insolvency Regulation) outside Luxembourg; |
3.7 | the Articles are in full force and effect and have not been amended, rescinded, revoked or declared null and void; |
3.8 | the Directors Resolutions are in full force and effect, have not been amended, rescinded, revoked or declared null and void, have been validly adopted and there has been no change in the directors of the Issuer since the Directors Resolutions; |
3.9 | the information and the statements recorded and contained in the Excerpt, the RCS Certificate and the Directors Resolutions are true, complete, up-to-date and accurate at the date of this Opinion and on the date of execution of the Indenture, the Underwriting Agreement and the Prospectus; |
3.10 | the issue and execution of the Notes, the execution of and the performance under the Indenture, the Underwriting Agreement and the Prospectus and filing of the Registration Statement and the Prospectus with the Commission (and all documents in connection therewith) by the Company are in the corporate interest of the Company; |
3.11 | the Notes, the Indenture, the Underwriting Agreement and all obligations of the Company in connection with the Notes and the Indenture and under the Registration Statement and the Prospectus (and the documents in connection therewith) are legal, valid, binding upon it and enforceable as a matter of all relevant laws (other than, but only to the extent expressly opined herein, Luxembourg law) and, in particular, their expressed governing law; |
3.12 | the Company will issue and execute the Notes and execute and perform its obligations under the Indenture, the Underwriting Agreement, the Registration Statement and the Prospectus (and all documents in connection therewith) in good faith, for the purpose of carrying out its business and without any intention to defraud or deprive of any legal benefit any other party (including third party creditors) or to circumvent any mandatory law or regulation of any jurisdiction; |
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3.13 | the Notes will not be offered to the public in Luxembourg, unless a prospectus has been duly approved by the Commission de Surveillance du Secteur Financier in accordance with the Law of July 10, 2005 on prospectuses for securities, as amended by the law of July 3, 2012 (the Prospectus Law ) or the offer benefits from an exemption to or constitutes a transaction otherwise not subject to the requirement to publish a prospectus for the purpose of the Prospectus Law and the Notes will not be listed on the Luxembourg Stock Exchange; |
3.14 | the proceeds of the Notes will be applied by the Company in accordance with the Articles and Luxembourg law; |
3.15 | the Notes will be duly authenticated, delivered and paid for in accordance with the terms of the Notes, the Underwriting Agreement and the Indenture. |
4 | Opinion |
Based upon the assumptions made above and subject to the qualifications set out below and any matter not disclosed to us, we are of the following opinion:
4.1 | Status |
The Company is a public company limited by shares ( société anonyme ), duly incorporated and validly existing under Luxembourg law for an unlimited duration.
4.2 | Corporate authority |
The Notes and the Indenture have been duly authorized and validly executed by the Company according to Luxembourg laws applicable to commercial companies generally.
5 | Qualifications |
This Opinion is subject to the following qualifications:
5.1 | Our Opinion is subject to all limitations resulting from the application of Luxembourg public policy rules, overriding statutes and mandatory laws as well as to all limitations by reasons of bankruptcy ( faillite ), composition with creditors ( concordat ), suspension of payments ( sursis de paiement ), controlled management ( gestion contrôlée ), or the appointment of a temporary administrator ( administrateur provisoire ) and any similar Luxembourg or foreign proceedings affecting the rights of creditors generally ( Insolvency Proceedings ). |
5.2 | Powers of attorney, mandates ( mandats ) or appointments of agents may terminate by law and without notice upon the occurrence of Insolvency Proceedings and may be revoked despite their being expressed to be irrevocable. |
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5.3 | Our opinion that the Company exists validly is based on the Articles, the Excerpt and the RCS Certificate (which confirms in particular that no judicial decisions in respect of bankruptcy ( faillite ), composition with creditors ( concordat ), suspension of payments ( sursis de paiement ), controlled management ( gestion contrôlée ), or the appointment of a temporary administrator ( administrateur provisoire ) pertaining to the Company have been registered with the RCS). The Articles, the Excerpt and the RCS Certificate are, however, not capable of revealing conclusively whether or not the Company is subject to any Insolvency Proceedings. |
5.4 | Corporate documents of, and courts orders affecting, the Company may not be available at the RCS and the clerks office of the Luxembourg district court forthwith upon their execution and filing and there may be a delay in the filing and publication of the documents or notices related thereto. We express no opinion as to the consequences of any failure by the Company to comply with its filing and publication obligations pursuant to the law of August 10, 1915 on commercial companies, as amended and the law of December 19, 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings, as amended. |
5.5 | We do not express an opinion on the validity or/and enforceability of the Registration Statement, the Indenture, the Prospectus, the Underwriting Agreement and the documents in connection therewith. |
5.6 | We do not express an opinion in relation to tax laws or regulations or the tax consequences of the transactions contemplated in connection with the Registration Statement, the Indenture, the Prospectus and the Underwriting Agreement. |
5.7 | We have not reviewed any documents incorporated by reference or referred to in the Registration Statement and therefore our opinions do not extend to such documents (other than those expressly set out in Section 2 hereof). |
6 | Miscellaneous |
6.1 | This Opinion is as of this date and is given on the basis of Luxembourg laws in effect and as published, construed and applied by Luxembourg courts, as of such date. We undertake no obligation to update it or to advise of any changes in such laws or their construction or application. We express no opinion, nor do we imply any opinion, as to any laws other than Luxembourg laws. |
6.2 | This Opinion is strictly limited to the matters expressly set forth therein. No other opinion is, or may be, implied or inferred therefrom. |
6.3 | Luxembourg legal concepts are expressed in English terms, which may not correspond to the original French or German terms relating thereto. We accept no liability for omissions or inaccuracies attributable to the use of English terms. |
6.4 | This Opinion is given on the express condition, accepted by each person entitled to rely on it, that this Opinion and all rights, obligations, issues of interpretation and liabilities in relation to it are governed by, and shall be construed in accordance with, Luxembourg law and any action or claim in relation to it can be brought exclusively before the Luxembourg courts. |
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6.5 | We hereby consent to the filing of this opinion as Exhibit 5 to the Current Report on Form 8-K. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. |
6.6 | This Opinion is issued by Loyens & Loeff Luxembourg S.à r.l. and may only be relied upon under the express condition, accepted by each person entitled to rely on it, that any liability of Loyens & Loeff Luxembourg S.à r.l. is limited to the amount paid out under its professional liability insurance policies. Individuals or legal entities that are involved in the services provided by, or on behalf of, Loyens & Loeff Luxembourg S.à r.l. cannot be held liable in any manner whatsoever. |
Yours faithfully,
Loyens & Loeff Luxembourg S.à r.l.
/s/ Judith Raijmakers | /s/ Vassiliyan Zanev | |||
Judith Raijmakers | Vassiliyan Zanev | |||
Advocaat | Avocat à la Cour |
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Exhibit 5.3
[Letterhead of STvB Advocaten]
December 3, 2013
Schlumberger N.V.
(Schlumberger Limited)
5599 San Felipe, 17th Floor
Houston, Texas 77056
Ladies and Gentlemen:
We have acted as legal counsel to Schlumberger N.V. (also referred to as Schlumberger Limited), a limited liability company organized under the laws of Curaçao (the Company), in connection with the preparation of the filing by the Company and Schlumberger Investment SA, a public company limited by shares ( société anonyme ) organized under the laws of the Grand Duchy of Luxembourg (SISA), of a Registration Statement on Form S-3 (Registration No. 333-190822) (the Registration Statement), with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act), relating to the registration under the Act of (i) senior unsecured debt securities of SISA (Debt Securities) and (ii) guarantees of the Debt Securities by the Company, that may be issued and sold from time to time pursuant to Rule 415 under the Act, certain legal matters in connection with the Notes and the Guarantee (as defined below) are being passed upon for you by us. At your request, this opinion is being furnished to you for filing as Exhibit 5 to the Current Report on Form 8-K.
The Registration Statement has been filed with the Commission. A related prospectus dated August 26, 2013 and prospectus supplement dated November 25, 2013 relating to the Notes and the Guarantee (collectively, the Prospectus) have been filed by SISA and the Company with the Commission pursuant to Rule 424(b) under the Act.
On November 25, 2013, SISA and the Company entered into an underwriting agreement (the Underwriting Agreement) with Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters (collectively, the Underwriters), providing for the issuance and sale by SISA to the Underwriters of $1,500,000,000 aggregate principal amount of SISAs 3.650% Senior Notes due 2023 (the Notes), all to be fully and unconditionally guaranteed (the Guarantee) by the Company, as guarantor.
This opinion is limited to matters governed by the laws of Curaçao.
We have reviewed each of the Articles of Incorporation, the Amended and Restated Bylaws of the Company, each as amended to date, the Registration Statement, the Prospectus, the Indenture (the Base Indenture) among SISA, the Company, as guarantor, and The Bank of New York Mellon, as trustee, registrar, paying agent and transfer agent (the Trustee), in the form of Exhibit 4.1 to the Current Report on Form 8-K, the First Supplemental Indenture (the First Supplemental Indenture and, together with the Base Indenture, the Indenture) among SISA, the Company and the Trustee, in the form of Exhibit 4.2 to the Current Report on Form 8-K,
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pursuant to which the Notes will be issued, and the Underwriting Agreement; have familiarized ourselves with the matters discussed in the Registration Statement and the Prospectus; and have examined all statutes and other records, instruments and corporate documents pertaining to the Company and the matters discussed in the Registration Statement and the Prospectus that we deem necessary to examine for the purpose of this opinion. We have assumed that all signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof and that all information submitted to us was accurate and complete.
Based upon our examination as aforesaid, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the former Netherlands Antilles and is currently validly existing as a limited liability company ( naamloze vennootschap ) under the laws of Curaçao.
2. The Guarantee has been duly authorized, and the Indenture has been duly authorized, executed and delivered by the Company.
We hereby consent to the filing of this opinion as Exhibit 5 to the Current Report on Form 8-K. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
We understand that Baker Botts L.L.P. intends to rely upon this opinion for purposes of the opinion such firm expects to deliver in connection with the Notes and the Guarantee, and we hereby consent to such reliance as though this opinion were addressed to such firm.
Sincerely yours, |
/s/ STvB Advocaten (Curaçao) N.V. |
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