Exhibit 1.1
Execution Version
MONSANTO COMPANY
DEBT
SECURITIES
UNDERWRITING AGREEMENT
June 26, 2014
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
As Representatives of the several
Underwriters named in the
respective Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time
Monsanto Company, a Delaware corporation (the “Company”), proposes to enter into one or more Pricing Agreements (each, a “Pricing Agreement”), substantially in the form of Exhibit I attached hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Designated Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to an Indenture, to be dated as of July 1, 2014, between the Company and The Bank of New York Mellon Trust Company, N.A. (the “Indenture”).
1. Pricing Agreements.
Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the
firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase any of the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to
be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the
Registration Statement, as defined below) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of electronic communications or
other transmission method satisfactory to the Company and the Representatives. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
At or prior to the time of the first agreement by an Underwriter for the sale of Designated Securities, which time is indicated on Schedule II
to the Pricing Agreement (the “Time of Sale”), the Company will prepare the Time of Sale Information (as defined below) for such offering of Securities. “Time of Sale Information” means (i) the Preliminary Prospectus (as
defined below) used most recently prior to the Time of Sale, (ii) the final term sheet prepared and filed pursuant to Rule 433 (“Rule 433”) under the Securities Act, (the “Pricing Term Sheet”) in the form of Schedule IV to
the Pricing Agreement, (iii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule III to the Pricing Agreement, and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Time of Sale Information.
2. Representations and Warranties of the Company.
The Company represents and
warrants to, and agrees with, each of the Underwriters that, as of the date of this Agreement:
(a) An “automatic shelf registration
statement” as defined under Rule 405 under the Securities Act on Form S-3 (No. 333-197036), including a prospectus, relating to the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier
than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been
issued and no proceeding for that purpose has been initiated or threatened by the Commission, 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. “Registration Statement” means such registration statement in the form filed with the Commission as of any specified time (or, if no time is specified, as of the Time of Sale,
including any amendment thereto, any document incorporated by reference therein and any information in a prospectus or prospectus supplement deemed or retroactively deemed to be part thereof pursuant to Rule 430B (“Rule 430B”) or Rule 430C
(“Rule 430C”) under the Securities Act, that has not been superseded or modified). For purposes of such definition, information contained in a form of prospectus or prospectus supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. “Prospectus” means, in respect of any Designated Securities, the final prospectus
supplement and prospectus relating to such Designated Securities filed by the Company with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Securities Act prior to the Time of Delivery (as defined below), including the
documents incorporated by reference therein; and “Preliminary Prospectus” means, in respect of any Designated Securities, any preliminary prospectus or preliminary prospectus supplement included in the Registration Statement or filed with
the Commission pursuant to Rule 424(b), including the documents incorporated by reference therein.
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(b) The Registration Statement complies, each Preliminary Prospectus complied, when filed with
the Commission, and the Prospectus complies or will comply when filed with the Commission, as applicable, in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), and the rules and regulations of the Commission (the “Rules and Regulations”). The Registration Statement, as of its effective date, did not include any untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of its date and as of the Time of Delivery, will not include any untrue statement of a material fact, and will not omit to state any
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Time of Sale Information, at the Time of Sale, did not, and as of the Time of
Delivery will not, 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. Notwithstanding
the foregoing, the representations and warranties in this Section 2(b) do not apply to statements in or omissions from the Registration Statement, the Prospectus or the Time of Sale Information based upon information furnished to the Company by
or on behalf of the Underwriters expressly for use therein, which consists solely of the following information in the Preliminary Prospectus and Prospectus each, under the caption “Underwriting”: (a) the information contained in the
list of Underwriters in the first paragraph; (b) the first, second, third and fourth sentences in the third paragraph related to the offering prices, concessions and reallowances; (c) the second sentence in the fourth paragraph related to
market making; and (d) the fifth, sixth and seventh paragraphs related to short sales, stabilizing transactions, purchases to cover positions created by short sales and penalty bids (collectively, the “Underwriter Information”).
(c) The Company was not and is not an ineligible issuer as defined in Rule 405 (“Rule 405”) under the Securities Act at any
applicable time in connection with the offering of the Securities.
(d) No Issuer Free Writing Prospectus referred to in Schedule III to
the Pricing Agreement will, as of the Time of Sale, conflict with the information contained in the Registration Statement or the Prospectus; and no such Issuer Free Writing Prospectus, as supplemented by and taken together with the other Time of
Sale Information as of the Time of Sale, will 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; provided, however, that this representation and warranty shall not apply to statements in or omissions from an Issuer Free Writing Prospectus in reliance upon and in conformity with the Underwriter Information. No statement of material
fact included in the Time of Sale Information that is required to be included in the Prospectus will be omitted from the Prospectus.
(e)
The Company has complied with the applicable requirements of Rule 164 (“Rule 164”) and Rule 433 under the Securities Act with respect to any Underwriter Free Writing Prospectus that has been delivered to it by the Representatives to the
same extent as if it were an Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
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(f) The documents incorporated by reference in the Registration Statement, in the Prospectus and
in the Time of Sale Information, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the Registration Statement, in the Prospectus or in the Time of Sale Information, when such documents become effective or are filed with the Commission, 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 the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading.
(g) 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) and (iii) 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) any Preliminary Prospectus, (iii) the Prospectus, (iv) the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in advance by the Representative. Each such
Issuer Free Writing Prospectus complied or will comply 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 or Prospectus (including any amendments or supplements thereto) accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did
not, and at the Time of Delivery 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 this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.
(h) Since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Time of Sale
Information, there has not been any material decrease in the outstanding capital stock (other than repurchases of common stock pursuant to previously disclosed programs or employee plans, disclosed or incorporated by reference in the Prospectus and
the Time of Sale Information), or any material increase in the long-term debt of the Company and its subsidiaries considered as a whole, or any material adverse change, or any development known to the Company involving a prospective material adverse
change, in or affecting the business, financial position, shareowners’ equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Prospectus and the Time of Sale
Information (including the documents incorporated by reference therein).
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(i) The Company and each subsidiary of the Company whose sales or total assets for the most
recent fiscal year exceeded 10% of the consolidated sales or total assets, respectively, of the Company and its subsidiaries (each, a “Principal Subsidiary” and collectively, the “Principal Subsidiaries”), has been duly
incorporated and is validly existing as a corporation or other entity under the laws of its jurisdiction of incorporation, with corporate (or entity) power and authority to own its properties and conduct its business as described in the Prospectus
and the Time of Sale Information. The Company is in good standing under the laws of its jurisdiction of incorporation and has been duly qualified as a foreign corporation for the transaction of business and is in good standing in each jurisdiction
where the ownership and leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the business, financial
condition, shareowners’ equity or results of operations of the Company and its consolidated subsidiaries taken as a whole (a “Material Adverse Effect”). Monsanto do Brasil Ltda. is the only subsidiary of the Company which is a
Principal Subsidiary as of the end of the Company’s most recent fiscal year.
(j) Except as otherwise disclosed in the Registration
Statement, the Prospectus and the Time of Sale Information, all of the issued and outstanding capital stock or other ownership interests of each Principal Subsidiary of the Company has been duly authorized and validly issued, is fully paid and
non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law) is owned by the Company directly or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial to the Company and its subsidiaries taken as a whole.
(k) The Company has an authorized capitalization as set forth in the Prospectus and the Time of Sale Information, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(l) This
Agreement and the Pricing Agreement relating to the Designated Securities have been duly authorized, executed and delivered by the Company.
(m) The Designated Securities have been duly authorized, and, when issued and delivered pursuant to this Agreement and the Pricing Agreement
with respect to such Designated Securities, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by
the Indenture and enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable
principles relating to enforceability; the Indenture has been duly authorized by the Company and duly qualified under the Trust Indenture Act and, at the Time of Delivery for such Designated Securities, the Indenture will have been duly executed and
delivered by the Company and will constitute a valid and legally binding instrument of the Company, enforceable in accordance with its terms except
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as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating
to enforceability and will be substantially in the form filed as an exhibit to the Registration Statement; the Indenture conforms, and the Designated Securities will conform, in all material respects to the descriptions thereof contained in the
Prospectus and Time of Sale Information.
(n) The issue and sale of the Designated Securities and the compliance by the Company with all
of the provisions of the Designated Securities, the Indenture, this Agreement and any Pricing Agreement, and the consummation of the transactions herein and therein contemplated:
(i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of, 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, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated
Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, the Agreement or any Pricing Agreement;
(ii) will not result in any violation of the provisions of the Restated Certificate of Incorporation of the Company or the Bylaws of the
Company, as amended and restated;
(iii) will not result in a violation of any statute or any order, rule or regulation of any court or
governmental agency or body in the United States having jurisdiction over the Company or any of its properties other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities
or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or any Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and
the distribution of the Designated Securities by the Underwriters may result in violations of state securities or Blue Sky laws); and
(iv) except as set forth in the Registration Statement, the Prospectus or the Time of Sale Information, will not require any consent,
approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States having jurisdiction over the Company for the issue and sale of the Designated
Securities or the consummation by the Company of the other transactions contemplated by this Agreement or any Pricing Agreement or the Indenture, except such as have been, or will have been prior to the Time of Delivery, obtained under the
Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated
Securities as contemplated by this Agreement and any Pricing Agreement and the distribution of the Designated Securities by the Underwriters.
(o) There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its
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subsidiaries is the subject and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities, other than as set forth in the
Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Company to issue the
Designated Securities.
(p) Deloitte & Touche LLP, who has audited certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm 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.
(q) The audited financial statements, and the related notes thereto, included or incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information present fairly in all material respects the consolidated financial position of the Company and its subsidiaries, and its results of operations and consolidated cash flows, as of the dates and for the
periods indicated, and said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods indicated, except as otherwise stated therein; any unaudited
consolidated financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information present fairly the consolidated financial position of the Company
and its subsidiaries and its results of operations and consolidated cash flows, as of the dates and for the periods indicated, subject to any year-end audit adjustments, and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods involved, except as otherwise stated therein, and have been prepared on a basis substantially consistent with that of the audited financial statements referred to above except as
otherwise stated therein; any selected financial and accounting data included in the Registration Statement, the Prospectus and the Time of Sale Information present fairly the information shown therein and have been prepared and compiled on a basis
consistent with the audited and unaudited financial statements for the Company, except as otherwise stated therein. In addition, any pro forma financial statements of the Company and its subsidiaries and the related notes thereto included or
incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information present fairly in all material respects the information shown therein, comply as to form in all material respects with the applicable accounting
requirements of Regulation S-X under the Securities Act and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information
present the information called for in all material respects and were prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.
(r) The Company is not aware of any valid and enforceable patent and proprietary rights (as defined herein) that are presently employed by the
Company or its Principal Subsidiaries in connection with the business now operated by them and that are not licensed to the Company or its Principal Subsidiaries, where the lack of such license would reasonably be expected to have a Material Adverse
Effect. The Company does not believe that any patent and
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proprietary right that it owns is invalid or unenforceable, where such invalidity or unenforceability would reasonably be expected to result in a Material Adverse Effect. For purposes of this
section, “patent and proprietary rights” shall mean patents, copyrights, know-how, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures, trademarks, service marks and trade
names.
(s) Except as otherwise stated in the Registration Statement, the Prospectus and the Time of Sale Information and except as would
not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (A) neither the Company nor any of its Principal Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, “Environmental Laws”), and (B) neither the Company nor any of its Principal Subsidiaries fails to possess any permit, authorization or approval required under any applicable
Environmental Laws or to be in compliance with their requirements.
(t) The Company is not and, after giving effect to the offering and
sale of the Designated Securities and the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, “Investment Company Act”).
(u) Except as otherwise stated in the Registration Statement, the Prospectus and the Time of Sale Information, there is and, since
September 1, 2012, has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith (the “Sarbanes Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(v) The Company and its subsidiaries maintain a system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) under
the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act and concluded, as of the most recent evaluation date required by the
Exchange Act, that the design and operation of these disclosure controls and procedures were effective to provide reasonable assurance of the achievement of the objectives described above.
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(w) The Company and its subsidiaries maintain systems of internal control over financial
reporting (as defined in Rule 13a-15(f) under the Exchange Act, “Internal Control Over Financial Reporting”) that comply in all material respects with the requirements of the Exchange Act and have been designed 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, including policies and procedures that: pertain to the
maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its subsidiaries; provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company and its
subsidiaries; and provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material effect on the financial statements. The Company’s management has
evaluated the effectiveness of the Company’s Internal Control Over Financial Reporting, as required by Rule 13a-15 under the Exchange Act, and has concluded that, as of the most recent evaluation date required by the Exchange Act (the
“Evaluation Date”), the Company maintained effective Internal Control Over Financial Reporting. Since the Evaluation Date, and except as disclosed in the Prospectus and the Time of Sale Information, management of the Company has not become
aware of any change in the Company’s Internal Control Over Financial Reporting that has materially affected, or is reasonably likely to materially affect, the Company’s Internal Control Over Financial Reporting.
(x) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Company and its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(y) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or
representative of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company organized, or any of its facilities located, in a country or territory that is the subject of Sanctions in violation of applicable law; and the Company will not directly or
indirectly use the proceeds of the sale of the Designated Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or
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business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person
(including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(z) Except
as disclosed in the Prospectus and the Time of Sale Information and except for any claims of prior violations which have been resolved, none of the Company, any of its subsidiaries or, to the best knowledge and belief of the officers of the Company,
any director, officer, agent, employee or other person acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or the U.K. Bribery Act 2010 (the “Bribery Act”); and the Company and its subsidiaries have conducted their businesses in compliance with the FCPA
and the Bribery Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
3. Offering of Designated Securities.
Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus.
4. Purchase of Designated Securities.
Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in
the form specified in the Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf
of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor, which payment, unless otherwise specified in the Pricing Agreement, shall be made by wire
transfer of immediately available funds to the account specified by the Company by written notice to the Representatives delivered at least forty-eight hours in advance, all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Securities.
5. Agreements of the Company.
The Company agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus in relation to the applicable Designated Securities in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated
Securities or, if applicable, such earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act; to file any Issuer Free Writing Prospectus (including the Pricing Term Sheet) to the extent required by Rule 433
under the Securities Act;
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not to make, prepare, use, authorize, approve, refer to or file any Issuer Free Writing Prospectus, and to make no further amendment or any supplement to the Registration Statement or Prospectus
after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities, in any case, which shall be reasonably disapproved by the Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof.
(b) To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery Period (as defined below), and during such same period to advise the Representatives, promptly after it receives notice hereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed, or mailed for filing, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the Securities or of any proceeding pursuant to Section 8A of the Securities Act, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information and, in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; as used herein, the
term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Designated 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 such Securities by any Underwriter or dealer.
(c) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Securities for offering and
sale under the securities laws of such United States jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities, provided, that, in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to subject itself
to taxation for doing business in any jurisdiction, and provided further that the expense of maintaining any such qualification more than one year from the date of the Pricing Agreement relating to such Securities shall be at the expense of the
Representatives for such Securities.
(d) No later than the time agreed to by the Representatives following the date of the applicable
Pricing Agreement, and from time to time thereafter, to furnish the Underwriters with copies of the Prospectus as amended or supplemented and each Issuer Free Writing Prospectus (to the extent not previously delivered) in such quantities as the
Representatives may from time to time reasonably request.
(e) To notify the Representatives if, during the Prospectus Delivery Period,
(i) any event shall have occurred as a result of which the Prospectus, the Time of Sale Information or
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any Issuer Free Writing Prospectus as then amended or supplemented would include an 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, when such Prospectus, Time of Sale Information or Issuer Free Writing Prospectus is delivered, not misleading; or (ii) it shall be necessary during such period,
for any other reason, to amend or supplement the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus or to file under the Exchange Act any document to be incorporated by reference in the Prospectus and the Time of Sale
Information in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act.
(f) Upon the request of the
Representatives, and subject to subsection (a) of this Section 5, to file such document(s) referred to in subparagraph (e) (to the extent required) and to prepare and furnish without charge to each Underwriter and to each other
broker-dealer participating with them in the distribution of such Securities as many copies as the Representatives may from time to time reasonably request of an amendment of or supplement to the Prospectus, Time of Sale Information or Issuer Free
Writing Prospectus which will correct such statement or omission or effect such compliance.
(g) To prepare and deliver to the
Representatives or any such other broker-dealer that is required to deliver a prospectus in connection with sales of any Securities at any time nine months or more after the date of the Pricing Agreement relating to such Securities, upon the request
of the Representatives but at the expense of the Underwriters or such other brokers, as the case may be, as many copies as the Representatives may request of any such amendment or supplement to the Prospectus, Time of Sale Information or Issuer Free
Writing Prospectus.
(h) To make generally available to its securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c)), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
(i) During the period beginning
from the date of the Pricing Agreement for such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives
or (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially
similar to such Designated Securities, without the prior written consent of the Representatives.
(j) 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.
(k) To comply with the applicable requirements of Rules 164 and 433 under the Securities Act with respect to any Underwriter Free Writing
Prospectus which has been delivered to the Company by the Representatives to the same extent as if it were an Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
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6. Certain Agreements of the Underwriters
. Each Underwriter hereby represents 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 other than (i) a free writing prospectus that would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer
Free Writing Prospectus referred to on Schedule III to the Pricing Agreement or referred to in Section 2(g) or 5(d) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) Notwithstanding the foregoing the Underwriters may use the Pricing Term Sheet without the consent of the Company.
7. Expenses of the Offering.
The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act, and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any Time of Sale Information and (except as otherwise expressly provided in Section 5(g) hereof) amendments
and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and any other broker-dealers participating in the distribution of the Securities; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents reasonably required in connection with the offering, purchase, sale and delivery of the Securities;
(iii) any fees charged by securities rating services for rating the Securities; (iv) any filing fees incident to any required review by the Financial Industry Regulatory Authority, Inc. of the terms of the sale of the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of any Trustee and any agent of the Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; and
(vii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 9
and Section 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they
may make.
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8. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct in all material respects, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been filed with the Commission
pursuant to Rule 433 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Counsel for the
Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities,
the Registration Statement, the Prospectus as amended or supplemented, the Time of Sale Information and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(c) The General Counsel of the Company, or other counsel for the Company
satisfactory to the Representatives, shall have furnished to the Representatives such counsel’s written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, substantially
to the effect that:
(i) The Company and each Principal Subsidiary have been duly incorporated and each is validly existing as a
corporation or other entity under the laws of its jurisdiction of incorporation, has all requisite corporate (or entity) power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is
currently being conducted and as described in the Prospectus and the Time of Sale Information; the Company is in good standing under the laws of its jurisdiction of incorporation and is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where the ownership and leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not reasonably be expected to have a Material
Adverse Effect;
(ii) Each of this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized,
executed and delivered by the Company;
(iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject and, to the best of such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities, other than as set forth or incorporated by reference in the Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect;
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(iv) The Designated Securities have been duly authorized by the Company; assuming (a) that
they have been duly signed by the manual or facsimile signatures of officers (specified in such opinion) of the Company (provided that counsel shall not make the assumption in this clause (a) with respect to Designated Securities that are
global securities), and (b) that the Designated Securities have been duly authenticated by the Trustee under the Indenture, when issued and delivered to the Underwriters in exchange for payment therefor in accordance with the terms of this
Agreement, the Designated Securities shall constitute valid and binding obligations of the Company, entitled to the benefits provided by the Indenture and enforceable in accordance with their terms except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and the Designated Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus and the Time of Sale Information;
(v) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; the Indenture has been duly qualified under the Trust Indenture Act;
(vi) The statements set forth in the Prospectus and the Time of Sale Information under the captions “Description of Notes” and
“Description of Debt Securities” (or similar headings referring to the Designated Securities), insofar as they purport to constitute a summary of the terms of the Securities and the provisions of the documents referred to therein, are
accurate summaries of the material terms thereof;
(vii) The issue and sale of the Designated Securities and the compliance by the Company
with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or constitute or result in a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to such counsel 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, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the
Designated Securities, the Indenture, this Agreement or the Pricing Agreement; nor will such actions result in a violation of the provisions of the Restated Certificate of Incorporation of the Company or the Bylaws of the Company, as amended and
restated; nor will any such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its subsidiaries or any of their
properties other than such as would
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not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities,
the Indenture, this Agreement or the Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and the Pricing Agreement and the distribution of the Designated Securities by the
Underwriters may result in violations of state securities or Blue Sky laws); and except as set forth in the Registration Statement or the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any New York
State or Federal court or any such New York State or Federal regulatory authority or other governmental body having jurisdiction over the Company is required for the issue and sale of the Designated Securities by the Company or the consummation by
the Company of the other transactions contemplated by this Agreement or the Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters, as to which such counsel need express no opinion;
(viii) The documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
(ix) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related notes and schedules and other financial, statistical and
accounting data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) appear on their face to be appropriately responsive in all material respects with the requirements of the
Securities Act and the Trust Indenture Act (other than the Trustee’s Statement of Eligibility on Form T-1, as to which such counsel need express no opinion) and the rules and regulations thereunder; and the information included in the
Registration Statement in response to Item 10 (insofar as it relates to such counsel) of Form S-3 is to the best of such counsel’s knowledge an accurate statement of the matter therein set forth and fairly presents the information called
for with respect to that matter by the Securities Act and the rules and regulations thereunder;
(x) The Registration Statement has become
effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act, any required filing
of any Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in the manner and within the time period required by Rule 433 and, based solely upon such counsel’s review of the list of stop orders issued by
the Commission and published on the Commission’s website as of the date of the issuance of the Designated Securities, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and, to the
best of such counsel’s knowledge, no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been initiated or are pending or threatened by the Commission; and
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(xi) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act.
Such counsel may also state that during the preparation of the
Registration Statement, the Prospectus and the Time of Sale Information, such counsel has participated in conferences with other officers and representatives of the Company, representatives of Deloitte & Touche LLP, the Underwriters and
their counsel, at which conferences the contents of the Registration Statement, the Prospectus and the Time of Sale Information and related matters were discussed, reviewed and revised. Although such counsel is not passing upon, and does not assume
responsibility for, the accuracy, completeness or fairness of such contents (except as expressly indicated in subparagraph (vi) above) and has not made any independent investigation or verification thereof, on the basis of the information which
was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and the experience such counsel has gained through its practice thereunder, nothing has come to such counsel’s attention which
causes it to believe that: (A) that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Company’s Annual Report on
Form 10-K with the Commission) became effective and as of the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (B) that the Prospectus as of its date and the Time of Delivery 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 or (C) that the Time of Sale Information, at the Time of Sale (which the Representatives have informed such counsel was the time prior to the first use of the Free Writing
Prospectus) and, as amended or supplemented, if applicable, as of the Time of Delivery, 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; provided that such counsel need not express any belief as to the financial statements, related notes and supporting schedules and other financial, statistical and accounting
data included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information or omitted therefrom or as to the Trustee’s Statement of Eligibility on Form T-1. Such counsel shall also state that such
counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference in the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by reference or described as required.
In rendering the foregoing
opinion, such counsel may rely upon opinions of local counsel (which may include counsel for the Representatives) satisfactory in form and scope to counsel for the Representatives.
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(d) At the date hereof and at the Time of Delivery, the Representatives shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and
information of the type referred to in AICPA Statement on Auditing Standards No. 72 (or any successor standard thereto).
(e) Since
the respective dates as of which information is given in the Prospectus (including any amendments or supplements prior to the execution of the Pricing Agreement relating to the Designated Securities) and the Time of Sale Information, there shall not
have been any material decrease in the outstanding capital stock (other than repurchases of common stock pursuant to previously disclosed programs or employee plans, disclosed or incorporated by reference in the Prospectus and the Time of Sale
Information), or any material increase in the long-term debt of the Company and its subsidiaries considered as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business,
financial position, shareowners’ equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Prospectus and the Time of Sale Information (including the documents
incorporated by reference therein prior to the execution of the Pricing Agreement relating to the Designated Securities), the effect of which is, in the judgment of the Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated by this Agreement, the Prospectus and the Time of Sale Information.
(f) On or after the earlier of (A) the Time of Sale and (B) the execution of the Pricing Agreement relating to the Designated
Securities no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock of or guaranteed by the Company by Fitch Ratings Inc., Moody’s Investors Service, Inc. or Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
(g) On or after the earlier of (A) the Time of Sale and
(B) the execution of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following events, the effect of which on the financial markets in each case, in the judgment of the Representatives, is
such as to make it impracticable or inadvisable for the Underwriters to proceed with the offering, sale or delivery of the Designated Securities in the manner contemplated by this Agreement, the Prospectus and the Time of Sale Information:
(i) trading in the Company’s Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been established on the New York Stock Exchange; (ii) a banking moratorium shall have been declared either by federal or New York State authorities; (iii) there shall have occurred any outbreak or escalation of hostilities
involving the United States, or declaration by the United States of a national emergency or war; (iv) any calamity or crisis within or without the United States affecting U.S. or international financial markets; or (v) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the United States.
(h) The Company shall
have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates
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of officers of the Company reasonably satisfactory to the Representatives as to the accuracy in all material respects of the representations and warranties of the Company herein at the date
hereof and as of such Time of Delivery and as to the performance by the Company in all material respects of all of its obligations hereunder to be performed at or prior to such Time of Delivery, and the Company also shall have furnished to the
Representatives a certificate of officers of the Company satisfactory to the Representatives as to the matters set forth in subsection (a) of this Section.
(i) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of prospectuses.
9. Indemnification.
(a) The Company
will indemnify and hold harmless each Underwriter, the affiliates, directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which any such person may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus, any preliminary
prospectus, or any amendment or supplement thereto, or arising out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and
will reimburse (within a reasonable time after the same is incurred, and subject to a right to audit) each such indemnified person for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any
such loss, claim, damage, liability, action or claim; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus, any preliminary prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with the Underwriter Information.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, the affiliates, directors, officers, employees and agents of the Company and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities to which any such person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus, any preliminary prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Prospectus, the Time of Sale Information,
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any Issuer Free Writing Prospectus, any preliminary prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with the Underwriter Information; and will reimburse
(within a reasonable time after the same is incurred, and subject to a right to audit) each such indemnified person for any legal or other expenses reasonably incurred by such indemnified person in connection with investigating or defending any such
action or claim.
(c) Promptly, but not later than 30 days, after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 9 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 omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 9. In case
any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof as provided above, the indemnifying party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, shall pay the reasonable fees and expenses of such proceeding and shall pay such fees and expenses of
counsel related to such proceeding within a reasonable time after the same is incurred, and subject to a right to audit. In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party 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
party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party 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 party 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 parties, and that all such fees and expenses shall be reimbursed within a reasonable time after the same is incurred, and subject to a right to audit. Any such separate firm for
any Underwriter, its affiliates, officers and directors and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the Company. The indemnifying party under this Section 9 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 judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding
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in respect of which any indemnified party is a party, unless such settlement (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to
such indemnified party, 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
party.
(d) If the indemnification provided for in this Section 9 is unavailable to an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein or is insufficient to hold harmless an indemnified party against any of such losses, claims, damages or liabilities (or
actions in respect thereto), then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omission which resulted in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault 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 on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) 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 which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall include any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
21
(e) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
10. Default by An Underwriter.
(a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties reasonably satisfactory to the Company to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any Underwriter, the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
22
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities of
a defaulting Underwriter or Underwriters made by the Representatives or the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. Survival
. The respective indemnities, agreements, representations, warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made by or on behalf of them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.
12. Effect of Termination of Pricing Agreement.
If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Section 7 and Section 9 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 7 and
Section 9 hereof.
13. Representatives; Delivery of Notices
. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. All statements, requests, notices and agreements hereunder shall be in writing and if to the Underwriters shall be delivered or sent
by mail, electronic or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to the Company shall be delivered or sent by mail, electronic or facsimile transmission to the address of the Company
set forth in the Registration Statement: Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 10 hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
23
14. No Third Party Beneficiaries
. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, and may be relied upon only by, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11 hereof, the officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement (including, without
limitation, the representations and warranties set forth herein and therein). No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Underwriters Not Fiduciaries
. The Company acknowledges and agrees that the Underwriters named in the Pricing Agreement are acting solely in
the capacity of an arm’s length contractual counterparty to the Company with respect to any offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, an agent of,
or in a similar capacity with respect to, the Company or any other person. Additionally, no such Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and such Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by such Underwriters named in the Pricing Agreement of the Company, the transactions contemplated thereby or other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and not on behalf of the Company.
16. Definitions.
|
|
(a)
|
“Bribery Act” is defined in Section 2(z).
|
|
|
(b)
|
“business day” is defined in Section 17.
|
|
|
(c)
|
“Commission” is defined in Section 2(a).
|
|
|
(d)
|
“Company” is defined in the first paragraph of this Agreement.
|
|
|
(e)
|
“Designated Securities” is defined in the first paragraph of this Agreement.
|
|
|
(f)
|
“Environmental Laws” is defined in Section 2(s).
|
|
|
(g)
|
“Evaluation Date” is defined in Section 2(w).
|
|
|
(h)
|
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
|
|
|
(i)
|
“FCPA” is defined in Section 2(z).
|
|
|
(j)
|
“Hazardous Materials” is defined in Section 2(s).
|
|
|
(k)
|
“HMT” is defined in Section 2(y).
|
24
|
|
(l)
|
“Indenture” is defined in the second paragraph of this Agreement.
|
|
|
(m)
|
“Internal Control Over Financial Reporting” is defined in Section 2(w).
|
|
|
(n)
|
“Investment Company Act” is defined in Section 2(t).
|
|
|
(o)
|
“Issuer Free Writing Prospectus” is defined in Section 2(g).
|
|
|
(p)
|
“Material Adverse Effect” is defined in Section 2(i).
|
|
|
(q)
|
“Money Laundering Laws” is defined in Section 2(x).
|
|
|
(r)
|
“OFAC” is defined in Section 2(y).
|
|
|
(s)
|
“Person” is defined in Section 2(y).
|
|
|
(t)
|
“Preliminary Prospectus” is defined in Section 2(a).
|
|
|
(u)
|
“Pricing Agreement” is defined in the first paragraph of this Agreement.
|
|
|
(v)
|
“Pricing Term Sheet” is defined in Section 1.
|
|
|
(w)
|
“Principal Subsidiary” is defined in Section 2(i).
|
|
|
(x)
|
“Prospectus” is defined in Section 2(a).
|
|
|
(y)
|
“Prospectus Delivery Period” is defined in Section 5(b).
|
|
|
(z)
|
“Registration Statement” is defined in Section 2(a).
|
|
|
(aa)
|
“Representatives” is defined in Section 1.
|
|
|
(bb)
|
“Rule 164” is defined in Section 2(e).
|
|
|
(cc)
|
“Rule 405” is defined in Section 2(c).
|
|
|
(dd)
|
“Rule 424(b)” is defined in Section 2(a).
|
|
|
(ee)
|
“Rule 430B” and “Rule 430C” is defined in Section 2(a).
|
|
|
(ff)
|
“Rule 433” is defined in Section 1.
|
|
|
(gg)
|
“Rules and Regulations” is defined in Section 2(b).
|
|
|
(hh)
|
“Sanctions” is defined in Section 2(y).
|
|
|
(ii)
|
“Sarbanes Oxley Act” is defined in Section 2(u).
|
|
|
(jj)
|
“Securities” is defined in the first paragraph of this Agreement.
|
25
|
|
(kk)
|
“Securities Act” means the Securities Act of 1933, as amended.
|
|
|
(ll)
|
“Time of Delivery” is defined in Section 4.
|
|
|
(mm)
|
“Time of Sale” is defined in Section 1.
|
|
|
(nn)
|
“Time of Sale Information” is defined in Section 1.
|
|
|
(oo)
|
“Trust Indenture Act” is defined in Section 2(b).
|
|
|
(pp)
|
“Underwriter Free Writing Prospectus” is defined in Section 6(a).
|
|
|
(qq)
|
“Underwriter Information” is defined in Section 2(b).
|
|
|
(rr)
|
“Underwriters” is defined in the first paragraph of this Agreement.
|
|
|
(ss)
|
“UNSC” is defined in Section 2(y).
|
17. Time of Essence; Business Day
. Time shall
be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
18. USA Patriot Act.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that
will allow the Underwriters to properly identify their respective clients.
19. Governing Law
. This Agreement and each Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of New York.
20. Execution in Counterparts
. This Agreement and each
Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same
instrument.
[The Remainder of this Page Intentionally Left Blank]
26
|
|
|
|
|
Very truly yours,
|
|
|
|
M
ONSANTO
C
OMPANY
|
|
|
|
|
By:
|
|
/s/ Tom D. Hartley
|
|
|
|
Name: Tom D. Hartley
|
|
|
|
Title: Vice President & Treasurer
|
EXHIBIT I
PRICING AGREEMENT
June 26, 2014
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
As Representatives of the several
Underwriters named in Schedule I hereto.
Ladies and Gentlemen:
M
ONSANTO
C
OMPANY
, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated June 26, 2014 (the “Underwriting Agreement”), to issue and
sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made
at and as of the date of this Pricing Agreement, except that each representation and warranty in Section 2 of the Underwriting Agreement which refers to the Prospectus and the Time of Sale Information shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the Prospectus and the Time of Sale Information (each as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the
Prospectus and the Time of Sale Information relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 13 of the Underwriting Agreement and the address of the Representatives referred to in such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you, is now proposed to be filed with the Commission.
EXHIBIT I - 1
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II thereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
Schedule III hereto sets forth the Free Writing Prospectuses, if any, included in the Time of Sale Information.
Schedule IV hereto sets forth the Pricing Term Sheet relating to the Designated Securities to be filed pursuant to Rule 433 under the
Securities Act.
If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of
the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.
EXHIBIT I - 2
|
|
|
|
|
Very truly yours,
|
|
|
|
M
ONSANTO
C
OMPANY
|
|
|
|
|
By:
|
|
/s/ Tom D. Hartley
|
|
|
|
Name: Tom D. Hartley
|
|
|
|
Title: Vice President and Treasurer
|
|
|
|
|
|
Accepted as of the date hereof:
|
|
|
|
C
ITIGROUP
G
LOBAL
M
ARKETS
I
NC
.
|
|
|
|
|
By:
|
|
/s/ Brian D. Bednarski
|
|
|
|
Name: Brian D. Bednarski
|
|
|
|
Title: Managing Director
|
|
|
|
J.P. M
ORGAN
S
ECURITIES
LLC
|
|
|
|
|
By:
|
|
/s/ Maria Sramek
|
|
|
|
Name: Maria Sramek
|
|
|
|
Title: Executive Director
|
On behalf of themselves and each of the other Underwriters
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underwriter
|
|
Principal
Amount of
Notes due
2017
|
|
|
Principal
Amount of
Notes due
2019
|
|
|
Principal
Amount of
Notes due
2021
|
|
|
Principal
Amount of
Notes due
2024
|
|
|
Principal
Amount of
Notes due
2034
|
|
|
Principal
Amount of
Notes due
2044
|
|
|
Principal
Amount of
Notes due
2064
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
100,000,000
|
|
|
$
|
100,000,000
|
|
|
$
|
100,000,000
|
|
|
$
|
150,000,000
|
|
|
$
|
100,000,000
|
|
|
$
|
200,000,000
|
|
|
$
|
150,000,000
|
|
|
J.P. Morgan Securities LLC
|
|
|
100,000,000
|
|
|
|
100,000,000
|
|
|
|
100,000,000
|
|
|
|
150,000,000
|
|
|
|
100,000,000
|
|
|
|
200,000,000
|
|
|
|
150,000,000
|
|
|
Goldman, Sachs & Co.
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
101,250,000
|
|
|
|
67,500,000
|
|
|
|
135,000,000
|
|
|
|
101,250,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
101,250,000
|
|
|
|
67,500,000
|
|
|
|
135,000,000
|
|
|
|
101,250,000
|
|
|
Morgan Stanley & Co. LLC
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
67,500,000
|
|
|
|
101,250,000
|
|
|
|
67,500,000
|
|
|
|
135,000,000
|
|
|
|
101,250,000
|
|
|
Barclays Capital Inc.
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
28,125,000
|
|
|
|
18,750,000
|
|
|
|
37,500,000
|
|
|
|
28,125,000
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
28,125,000
|
|
|
|
18,750,000
|
|
|
|
37,500,000
|
|
|
|
28,125,000
|
|
|
RBS Securities Inc.
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
18,750,000
|
|
|
|
28,125,000
|
|
|
|
18,750,000
|
|
|
|
37,500,000
|
|
|
|
28,125,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
7,500,000
|
|
|
|
5,000,000
|
|
|
|
10,000,000
|
|
|
|
7,500,000
|
|
|
Mizuho Securities USA Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
7,500,000
|
|
|
|
5,000,000
|
|
|
|
10,000,000
|
|
|
|
7,500,000
|
|
|
Rabo Securities USA, Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
7,500,000
|
|
|
|
5,000,000
|
|
|
|
10,000,000
|
|
|
|
7,500,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
7,500,000
|
|
|
|
5,000,000
|
|
|
|
10,000,000
|
|
|
|
7,500,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
Fifth Third Securities, Inc.
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
Santander Investment Securities Inc.
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
SG Americas Securities, LLC
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
Standard Chartered Bank
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
UniCredit Capital Markets LLC
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
3,050,000
|
|
|
|
4,575,000
|
|
|
|
3,050,000
|
|
|
|
6,100,000
|
|
|
|
4,575,000
|
|
|
The Williams Capital Group, L.P.
|
|
|
2,950,000
|
|
|
|
2,950,000
|
|
|
|
2,950,000
|
|
|
|
4,425,000
|
|
|
|
2,950,000
|
|
|
|
5,900,000
|
|
|
|
4,425,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
|
$
|
750,000,000
|
|
|
$
|
500,000,000
|
|
|
$
|
1,000,000,000
|
|
|
$
|
750,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE I - 1
SCHEDULE II
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title of Designated
Securities:
|
|
1.150%
Senior Notes
due 2017
|
|
2.125%
Senior Notes
due 2019
|
|
2.750%
Senior Notes
due 2021
|
|
3.375%
Senior Notes
due 2024
|
|
4.200%
Senior Notes
due 2034
|
|
4.400%
Senior Notes due
2044
|
|
4.700%
Senior Notes
due 2064
|
|
Aggregate Principal Amount:
|
|
$500,000,000
|
|
$500,000,000
|
|
$500,000,000
|
|
$750,000,000
|
|
$500,000,000
|
|
$1,000,000,000
|
|
$750,000,000
|
|
|
|
|
|
|
|
|
|
|
Price to Public:
|
|
99.903% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.990% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.815% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.940% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.355% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.207% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.083% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
|
|
|
|
|
|
|
|
|
Purchase Price by Underwriters:
|
|
99.453% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.390% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.190% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
99.290% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
98.480% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
98.332% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
98.083% of the principal amount of the Designated Securities, plus accrued interest from July 1, 2014
|
|
|
|
|
|
|
|
|
|
|
Maturity:
|
|
June 30, 2017
|
|
July 15, 2019
|
|
July 15, 2021
|
|
July 15, 2024
|
|
July 15, 2034
|
|
July 15, 2044
|
|
July 15, 2064
|
|
|
|
|
|
|
|
|
|
|
Interest Rate:
|
|
1.150%
|
|
2.125%
|
|
2.750%
|
|
3.375%
|
|
4.200%
|
|
4.400%
|
|
4.700%
|
|
|
|
|
|
|
|
|
|
|
Interest Payment Dates:
|
|
June 30 and December 30, commencing December 30, 2014
|
|
January 15 and July 15, commencing January 15, 2015
|
|
January 15 and July 15, commencing January 15, 2015
|
|
January 15 and July 15, commencing January 15, 2015
|
|
January 15 and July 15, commencing January 15, 2015
|
|
January 15 and July 15, commencing January 15, 2015
|
|
January 15 and July 15, commencing January 15, 2015
|
|
|
|
|
|
|
|
|
|
|
Record Dates:
|
|
June 15 and December 15, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
January 1 and July 1, immediately preceding the Interest Payment Dates
|
|
|
|
|
|
|
|
|
|
|
Optional Redemption:
|
|
Make-Whole T+5 basis points
|
|
Make-Whole T+10 basis points
|
|
Make-Whole T+10 basis points
|
|
At any time prior to April 15, 2024 (three months prior to maturity), Make-Whole T+15 basis points
|
|
At any time prior to January 15, 2034 (six months prior to maturity), Make-Whole T+15 basis points
|
|
At any time prior to January 15, 2044 (six months prior to maturity), Make-Whole T+20 basis points
|
|
At any time prior to January 15, 2064 (six months prior to maturity), Make-Whole T+25 basis points
|
|
|
|
|
|
|
|
|
|
|
Par Call:
|
|
N/A
|
|
N/A
|
|
N/A
|
|
On or after April 15, 2024
|
|
On or after January 15, 2034
|
|
On or after January 15, 2044
|
|
On or after January 15, 2064
|
SCHEDULE II - 1
|
|
|
|
|
Tax Event Redemption of 2064 Notes:
|
|
The 2064 Notes are callable at par within 90 days of a “Tax Event” as described in the Time of Sale Information
|
|
|
|
|
Time of Sale:
|
|
5:30P.M., New York City time, June 26, 2014
|
|
|
|
|
Time of Delivery:
|
|
July 1, 2014
|
|
|
|
|
Form of Designated Securities:
|
|
Book-entry only form represented by one or more global securities deposited with The Depository Trust Company or its designated custodian, to be made available for checking by the Representatives at least twenty-four hours prior
to the Time of Delivery.
|
|
|
|
|
Closing Location:
|
|
Mayer Brown LLP, 71 S. Wacker, Chicago, IL 60606
|
|
|
|
|
Names and Addresses of Designated Representatives:
|
|
Citigroup Global Markets Inc.
388 Greenwich
Street
New York, New York 10013
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
|
|
|
|
|
Address for Notices, etc.
|
|
Citigroup Global Markets Inc.
388 Greenwich
Street
New York, New York 10013
Attention: General
Counsel
Facsimile: (212) 816-7912
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attention: High Grade Syndicate Desk
— 3rd floor
Facsimile: (212) 834-6081
|
SCHEDULE II - 2
SCHEDULE III
Free Writing Prospectuses included in the Time of Sale Information
None.
SCHEDULE III - 1
SCHEDULE IV
Supplementing the Preliminary Prospectus
Supplement dated
June 26, 2014
(To Prospectus dated June 26, 2014)
$4,500,000,000
Monsanto Company
$500,000,000 1.150% Senior Notes due 2017
$500,000,000 2.125% Senior Notes due 2019
$500,000,000 2.750% Senior Notes due 2021
$750,000,000 3.375% Senior Notes due 2024
$500,000,000 4.200% Senior Notes due 2034
$1,000,000,000 4.400% Senior Notes due 2044
$750,000,000 4.700% Senior Notes due 2064
Pricing Term Sheet
June 26,
2014
|
|
|
|
|
Issuer:
|
|
Monsanto Company
|
|
|
|
|
Format:
|
|
SEC Registered
|
|
|
|
|
Title:
|
|
1.150% Senior Notes due 2017 (the “2017 Notes”)
2.125% Senior Notes due 2019 (the “2019 Notes”)
2.750%
Senior Notes due 2021 (the “2021 Notes”)
3.375% Senior Notes due 2024 (the “2024 Notes”)
4.200% Senior Notes due 2034 (the “2034 Notes”)
4.400%
Senior Notes due 2044 (the “2044 Notes”)
4.700% Senior Notes due 2064 (the “2064 Notes”)
|
|
|
|
|
Principal Amount:
|
|
2017 Notes: $500,000,000
2019 Notes:
$500,000,000
2021 Notes: $500,000,000
2024 Notes:
$750,000,000
2034 Notes: $500,000,000
2044 Notes:
$1,000,000,000
2064 Notes: $750,000,000
|
|
|
|
|
Maturity Date:
|
|
2017 Notes: June 30, 2017
2019 Notes: July
15, 2019
2021 Notes: July 15, 2021
2024 Notes: July 15,
2024
2034 Notes: July 15, 2034
2044 Notes: July 15, 2044
2064 Notes: July 15, 2064
|
|
|
|
|
Coupon (Interest Rate):
|
|
2017 Notes: 1.150%
2019 Notes: 2.125%
2021 Notes: 2.750%
2024 Notes: 3.375%
2034 Notes: 4.200%
2044 Notes: 4.400%
2064 Notes: 4.700%
|
|
|
|
|
Interest Payment Dates:
|
|
2017 Notes: June 30 and December 30, commencing December 30, 2014
2019 Notes, 2021 Notes, 2024 Notes, 2034 Notes, 2044 Notes and 2064 Notes: January 15 and July 15, commencing January 15,
2015
|
SCHEDULE IV - 1
|
|
|
|
|
|
|
|
Benchmark Treasury:
|
|
2017 Notes: UST 0.875% due June 15, 2017
2019 Notes: UST 1.500% due May 31, 2019
2021 Notes: UST
2.000% due May 31, 2021
2024 Notes: UST 2.500% due May 15, 2024
2034 Notes: UST 3.625% due February 15, 2044
2044 Notes: UST
3.625% due February 15, 2044
2064 Notes: UST 3.625% due February 15, 2044
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
2017 Notes: 99-31 1/4; 0.883%
2019 Notes:
99-12 3/4; 1.627%
2021 Notes: 99-05+; 2.129%
2024 Notes:
99-23; 2.532%
2034 Notes: 105-05+; 3.348%
2044 Notes:
105-05+; 3.348%
2064 Notes: 105-05+; 3.348%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
2017 Notes: + 30 basis points
2019 Notes: +
50 basis points
2021 Notes: + 65 basis points
2024 Notes: +
85 basis points
2034 Notes: + 90 basis points
2044 Notes: +
110 basis points
2064 Notes: + 140 basis points
|
|
|
|
|
Yield to Maturity:
|
|
2017 Notes: 1.183%
2019 Notes: 2.127%
2021 Notes: 2.779%
2024 Notes: 3.382%
2034 Notes: 4.248%
2044 Notes: 4.448%
2064 Notes: 4.748%
|
|
|
|
|
Price to Public:
|
|
2017 Notes: 99.903%
2019 Notes: 99.990%
2021 Notes: 99.815%
2024 Notes: 99.940%
2034 Notes: 99.355%
2044 Notes: 99.207%
2064 Notes: 99.083%
|
|
|
|
|
Underwriting Discount:
|
|
2017 Notes: 0.450%
2019 Notes: 0.600%
2021 Notes: 0.625%
2024 Notes: 0.650%
2034 Notes: 0.875%
2044 Notes: 0.875%
2064 Notes: 1.000%
|
SCHEDULE IV - 2
|
|
|
|
|
|
|
|
Optional Redemption:
|
|
2017 Notes: Make-Whole T+5 basis points
2019 Notes: Make-Whole T+10 basis points
2021 Notes: Make-Whole T+10 basis points
2024 Notes: At any time prior to April 15, 2024 (three months prior to maturity), Make-Whole T+15 basis points
2034 Notes: At any time prior to January 15, 2034 (six months prior to maturity),
Make-Whole T+15 basis points
2044 Notes: At any time prior to January 15, 2044
(six months prior to maturity), Make-Whole T+20 basis points
2064 Notes: At any time
prior to January 15, 2064 (six months prior to maturity), Make-Whole T+25 basis points
|
|
|
|
|
Par Call:
|
|
2017 Notes: N/A
2019 Notes: N/A
2021 Notes: N/A
2024 Notes: On or after April 15, 2024
2034 Notes: On or after January 15, 2034
2044 Notes: On or after
January 15, 2044
2064 Notes: On or after January 15, 2064
|
|
|
|
|
Tax Event Redemption of 2064 Notes:
|
|
Callable at par within 90 days of a “Tax Event” as described below
|
|
|
|
|
Trade Date:
|
|
June 26, 2014
|
|
|
|
|
Settlement Date:
|
|
July 1, 2014 (T+3)
|
|
|
|
|
Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc.
J.P. Morgan
Securities LLC
Goldman, Sachs & Co.
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. LLC
Barclays Capital
Inc.
Mitsubishi UFJ Securities (USA), Inc.
RBS Securities
Inc.
|
|
|
|
|
Co-Managers:
|
|
Credit Agricole Securities (USA) Inc.
Mizuho
Securities USA Inc.
Rabo Securities USA, Inc.
Wells Fargo
Securities, LLC
BNY Mellon Capital Markets, LLC
Fifth Third
Securities, Inc.
Santander Investment Securities Inc.
SG
Americas Securities, LLC
Standard Chartered Bank
UniCredit
Capital Markets LLC
The Williams Capital Group, L.P.
|
|
|
|
|
CUSIP/ISIN:
|
|
2017 Notes: 61166W AR2 / US61166WAR25
2019
Notes: 61166W AS0 / US61166WAS08
2021 Notes: 61166W AT8 / US61166WAT80
2024 Notes: 61166W AU5 / US61166WAU53
2034 Notes: 61166W AN1 /
US61166WAN11
2044 Notes: 61166W AP6 / US61166WAP68
2064
Notes: 61166W AQ4 / US61166WAQ42
|
SCHEDULE IV - 3
|
*
|
An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and
assumptions, as they deem appropriate. The rating of the notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to
review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency.
|
Tax Event Redemption of the 2064 Notes
If a Tax Event occurs, the issuer may redeem the 2064 Notes, in whole, but not in part, at the issuer’s option at any time within
90 days following the occurrence of such Tax Event, at a redemption price equal to 100% of the principal amount of the 2064 Notes being redeemed, plus accrued and unpaid interest, if any, to but excluding the redemption date.
“Tax Event” means that the issuer shall have received an opinion of nationally recognized independent tax counsel that, as a result
of:
|
|
•
|
|
any amendment to or change (including any announced prospective amendment or change) in any law or treaty, or any regulation thereunder, of the United States or any of its political subdivisions or taxing authorities;
|
|
|
•
|
|
any judicial decision, administrative action, official administrative pronouncement, ruling, regulatory procedure, regulation, notice or announcement, including any notice or announcement of intent to adopt or
promulgate any ruling, regulatory procedure or regulation, by any court, governmental agency or regulatory authority (any of the foregoing, an “Administrative or Judicial Action”);
|
|
|
•
|
|
any amendment to or change in any official position with respect to, or any interpretation of, an Administrative or Judicial Action or a law or regulation of the United States that differs from the previously generally
accepted position or interpretation; or
|
|
|
•
|
|
a threatened challenge asserted in connection with an audit of the issuer or any of its subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the 2064 Notes,
|
in each case, occurring or becoming publicly-known on
or after the original issue date of the 2064 Notes, there is more than an insubstantial increase in the risk that interest payable by the issuer on the 2064 Notes is not, or within 90 days will not be, deductible, in whole or in part, by the issuer
for United States federal income tax purposes.
Holders of 2064 Notes to be redeemed will receive notice by first-class mail (and/or, to
the extent permitted by applicable procedures or regulations, electronically) at least 30 and not more than 60 days before the redemption date.
Update
to the “Material United States Federal Income Tax Considerations” in the Preliminary Prospectus Supplement
The following
paragraph supplements the “Material United States Federal Income Tax Considerations” section of the Preliminary Prospectus Supplement and should be read together with such section of the Preliminary Prospectus Supplement:
The determination of whether an instrument is classified as indebtedness, rather than as equity, for United States federal income tax purposes
requires a judgment based on all relevant facts and circumstances. There is no statutory, judicial, or administrative authority that directly addresses the United States federal income tax treatment of an instrument similar to the notes. The issuer
believes that the notes constitute indebtedness for United States federal income tax purposes, and the remainder of this summary assumes such treatment. The issuer will treat the notes as indebtedness for United States federal income tax purposes.
By acquiring an interest in a note, each beneficial owner of a note is deemed to agree to treat the notes as indebtedness for United States federal income tax purposes.
SCHEDULE IV - 4
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 (800) 831-9146 or J.P. Morgan Securities LLC collect at (212) 834-4533.
SCHEDULE IV - 5
Exhibit 4.1
Execution Version
MONSANTO COMPANY
to
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of July 1, 2014
Providing for Issuance of Debt Securities
T
ABLE
OF
C
ONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
1
|
|
|
Section 101.
|
|
Definitions
|
|
|
1
|
|
|
Section 102.
|
|
Compliance Certificates and Opinions
|
|
|
9
|
|
|
Section 103.
|
|
Form of Documents Delivered to Trustee
|
|
|
9
|
|
|
Section 104.
|
|
Acts of Holders; Record Dates
|
|
|
10
|
|
|
Section 105.
|
|
Notices, Etc., to Trustee and Company
|
|
|
12
|
|
|
Section 106.
|
|
Notice to Holders; Waiver
|
|
|
13
|
|
|
Section 107.
|
|
Conflict with Trust Indenture Act
|
|
|
13
|
|
|
Section 108.
|
|
Effect of Headings and Table of Contents
|
|
|
13
|
|
|
Section 109.
|
|
Assignment; Successors and Assigns
|
|
|
13
|
|
|
Section 110.
|
|
Separability Clause
|
|
|
14
|
|
|
Section 111.
|
|
Benefits of Indenture
|
|
|
14
|
|
|
Section 112.
|
|
Governing Law
|
|
|
14
|
|
|
Section 113.
|
|
Legal Holidays
|
|
|
14
|
|
|
Section 114.
|
|
Act of Holders when Securities are Denominated in Different Currencies
|
|
|
14
|
|
|
Section 115.
|
|
Monies of Different Currencies to be Segregated
|
|
|
15
|
|
|
Section 116.
|
|
Payment to be in Proper Currency
|
|
|
15
|
|
|
Section 117.
|
|
No Security Interest Created
|
|
|
15
|
|
|
Section 118.
|
|
Force Majeure
|
|
|
15
|
|
|
|
|
|
ARTICLE TWO SECURITY FORMS
|
|
|
16
|
|
|
Section 201.
|
|
Forms Generally
|
|
|
16
|
|
|
Section 202.
|
|
Form of Face of Security
|
|
|
16
|
|
|
Section 203.
|
|
Form of Reverse of Security
|
|
|
18
|
|
|
Section 204.
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
21
|
|
|
|
|
|
ARTICLE THREE THE SECURITIES
|
|
|
21
|
|
|
Section 301.
|
|
Amount Unlimited; Issuable in Series
|
|
|
21
|
|
|
Section 302.
|
|
Denominations
|
|
|
24
|
|
|
Section 303.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
24
|
|
|
Section 304.
|
|
Book-Entry Securities
|
|
|
26
|
|
|
Section 305.
|
|
Temporary Securities
|
|
|
28
|
|
|
Section 306.
|
|
Registration, Registration of Transfer and Exchange
|
|
|
29
|
|
|
Section 307.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
30
|
|
|
Section 308.
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
31
|
|
|
Section 309.
|
|
Persons Deemed Owners
|
|
|
32
|
|
|
Section 310.
|
|
Cancellation
|
|
|
32
|
|
|
Section 311.
|
|
Computation of Interest
|
|
|
32
|
|
|
Section 312.
|
|
CUSIP and ISIN Numbers
|
|
|
33
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
|
|
33
|
|
|
Section 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
33
|
|
|
Section 402.
|
|
Application of Trust Money
|
|
|
34
|
|
|
|
|
|
ARTICLE FIVE REMEDIES
|
|
|
34
|
|
|
Section 501.
|
|
Events of Default
|
|
|
34
|
|
|
Section 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
36
|
|
|
Section 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
37
|
|
|
Section 504.
|
|
Trustee May File Proofs of Claim
|
|
|
37
|
|
|
Section 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
38
|
|
|
Section 506.
|
|
Application of Money Collected
|
|
|
38
|
|
|
Section 507.
|
|
Limitation on Suits
|
|
|
38
|
|
|
Section 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
39
|
|
|
Section 509.
|
|
Restoration of Rights and Remedies
|
|
|
39
|
|
|
Section 510.
|
|
Rights and Remedies Cumulative
|
|
|
40
|
|
|
Section 511.
|
|
Delay or Omission Not Waiver
|
|
|
40
|
|
|
Section 512.
|
|
Control by Holders
|
|
|
40
|
|
|
Section 513.
|
|
Waiver of Past Defaults
|
|
|
40
|
|
|
Section 514.
|
|
Undertaking for Costs
|
|
|
41
|
|
|
Section 515.
|
|
Waiver of Stay or Extension Laws
|
|
|
41
|
|
|
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
41
|
|
|
Section 601.
|
|
Certain Duties and Responsibilities
|
|
|
41
|
|
|
Section 602.
|
|
Notice of Defaults
|
|
|
42
|
|
|
Section 603.
|
|
Certain Rights of Trustee
|
|
|
43
|
|
|
Section 604.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
44
|
|
|
Section 605.
|
|
May Hold Securities and Serve as Trustee Under Other Indentures
|
|
|
44
|
|
|
Section 606.
|
|
Money Held in Trust
|
|
|
45
|
|
|
Section 607.
|
|
Compensation and Reimbursement
|
|
|
45
|
|
|
Section 608.
|
|
Disqualification; Conflicting Interests
|
|
|
45
|
|
|
Section 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
46
|
|
|
Section 610.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
46
|
|
|
Section 611.
|
|
Acceptance of Appointment by Successor
|
|
|
47
|
|
|
Section 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
48
|
|
|
Section 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
49
|
|
|
Section 614.
|
|
Investment of Certain Payments Held by the Trustee
|
|
|
49
|
|
|
Section 615.
|
|
Appointment of Authenticating Agent
|
|
|
49
|
|
|
Section 616.
|
|
FATCA Withholding
|
|
|
51
|
|
|
|
|
|
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
51
|
|
|
Section 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
51
|
|
|
Section 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
51
|
|
|
Section 703.
|
|
Reports by Trustee
|
|
|
52
|
|
|
Section 704.
|
|
Reports by Company
|
|
|
52
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
53
|
|
|
Section 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
53
|
|
|
Section 802.
|
|
Successor Substituted
|
|
|
53
|
|
|
Section 803.
|
|
Officers’ Certificate and Opinion of Counsel
|
|
|
53
|
|
|
|
|
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
|
|
54
|
|
|
Section 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
54
|
|
|
Section 902.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
55
|
|
|
Section 903.
|
|
Execution of Supplemental Indentures
|
|
|
56
|
|
|
Section 904.
|
|
Effect of Supplemental Indentures
|
|
|
56
|
|
|
Section 905.
|
|
Conformity with Trust Indenture Act
|
|
|
56
|
|
|
Section 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
56
|
|
|
|
|
|
ARTICLE TEN COVENANTS
|
|
|
57
|
|
|
Section 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
57
|
|
|
Section 1002.
|
|
Maintenance of Office or Agency
|
|
|
57
|
|
|
Section 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
57
|
|
|
Section 1004.
|
|
Corporate Existence
|
|
|
59
|
|
|
Section 1005.
|
|
Limitation upon Liens
|
|
|
59
|
|
|
Section 1006.
|
|
Limitation upon Sales and Leasebacks
|
|
|
62
|
|
|
Section 1007.
|
|
Waiver of Certain Covenants
|
|
|
62
|
|
|
Section 1008.
|
|
Compliance Certificate
|
|
|
63
|
|
|
Section 1009.
|
|
Calculation of Original Issue Discount
|
|
|
63
|
|
|
|
|
|
ARTICLE ELEVEN REDEMPTION OF SECURITIES
|
|
|
63
|
|
|
Section 1101.
|
|
Applicability of Article
|
|
|
63
|
|
|
Section 1102.
|
|
Election to Redeem: Notice to Trustee
|
|
|
63
|
|
|
Section 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
64
|
|
|
Section 1104.
|
|
Notice of Redemption
|
|
|
64
|
|
|
Section 1105.
|
|
Deposit of Redemption Price
|
|
|
65
|
|
|
Section 1106.
|
|
Securities Payable on Redemption Date
|
|
|
65
|
|
|
Section 1107.
|
|
Securities Redeemed in Part
|
|
|
66
|
|
|
|
|
|
ARTICLE TWELVE SINKING FUNDS
|
|
|
66
|
|
|
Section 1201.
|
|
Applicability of Article
|
|
|
66
|
|
|
Section 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
66
|
|
|
Section 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
67
|
|
|
|
|
|
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
67
|
|
|
Section 1301.
|
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
|
|
|
67
|
|
|
Section 1302.
|
|
Defeasance and Discharge
|
|
|
67
|
|
|
Section 1303.
|
|
Covenant Defeasance
|
|
|
68
|
|
|
Section 1304.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
68
|
|
|
Section 1305.
|
|
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
|
|
|
70
|
|
iii
|
|
|
|
|
|
|
|
|
Section 1306.
|
|
Reinstatement
|
|
|
71
|
|
|
Section 1307.
|
|
Qualifying Trustee
|
|
|
71
|
|
|
|
|
|
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
|
|
|
71
|
|
|
Section 1401.
|
|
Exemption from Individual Liability
|
|
|
71
|
|
iv
MONSANTO COMPANY
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
|
|
|
|
|
|
|
Trust Indenture
Act Section
|
|
Indenture Section
|
|
(S) 310(a) (1)
|
|
609
|
|
|
|
(a) (2)
|
|
609
|
|
|
|
(a) (3)
|
|
Not Applicable
|
|
|
|
(a) (4)
|
|
Not Applicable
|
|
|
|
(b)
|
|
608, 610
|
|
|
|
(S) 311(a)
|
|
613
|
|
|
|
(b)
|
|
613
|
|
|
|
(S) 312(a)
|
|
701, 702(a)
|
|
|
|
(b)
|
|
702(b)
|
|
|
|
(c)
|
|
702(c)
|
|
|
|
(S) 313(a)
|
|
703(a)
|
|
|
|
(b)
|
|
703(a)
|
|
|
|
(c)
|
|
703(a)
|
|
|
|
(d)
|
|
703(b)
|
|
|
|
(S) 314(a)
|
|
704
|
|
|
|
(a)(4)
|
|
101, 704
|
|
|
|
(b)
|
|
Not Applicable
|
|
|
|
(c)(1)
|
|
102
|
|
|
|
(c)(2)
|
|
102
|
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
|
(d)
|
|
Not Applicable
|
|
|
|
(e)
|
|
102
|
|
|
|
(S) 315(a)
|
|
601
|
|
|
|
(b)
|
|
602
|
|
|
|
(c)
|
|
601
|
|
|
|
(d)
|
|
601
|
|
|
|
(e)
|
|
514
|
|
|
|
(S) 316(a)
|
|
101
|
|
|
|
(a)(1)(A)
|
|
502, 512
|
|
|
|
(a)(1)(B)
|
|
513
|
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
|
(b)
|
|
508
|
|
|
|
(c)
|
|
104(c)
|
|
|
|
(S) 317(a)(1)
|
|
503
|
|
|
|
(a)(2)
|
|
504
|
|
|
|
(b)
|
|
1003
|
|
|
|
(S) 318(a)
|
|
107
|
|
|
NOTE: This
table shall not, for any purpose, be deemed to be a part of the Indenture.
v
INDENTURE
INDENTURE, dated as of July 1, 2014, between M
ONSANTO
C
OMPANY
, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”), having its principal office at 800 North Lindbergh Boulevard, St. Louis, Missouri 63167, and T
HE
B
ANK
OF
N
EW
Y
ORK
M
ELLON
T
RUST
C
OMPANY
, N.A., a national banking association, as Trustee (herein called the “Trustee”).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein called the “Securities”), in an unlimited aggregate principal amount, in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include all other genders;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America or as provided with respect to any series of Securities and, except as otherwise herein expressly provided
or as provided with respect to any series of Securities, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder with respect to any series of Securities, shall mean such
accounting principles as are generally accepted at the date of such computation in the United States of America; and
(4) unless the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this Indenture;
(5) unless otherwise expressly provided, the
word “including” does not limit the preceding words or terms; and
(6) the words “herein”, “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the possession, directly or indirectly, of the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt,” in respect of any Sale and Leaseback Transaction, means, as of the time of determination, the total obligation
(discounted to present value at the rate per annum equal to the discount rate which would be applicable to a capital lease obligation with like term in accordance with generally accepted accounting principles) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes, maintenance, repairs, insurance, water rates and other items which do not constitute payments for property rights) during the remaining portion of the initial term of the lease
included in such Sale and Leaseback Transaction, to the extent that such obligation is required to be reflected as indebtedness on the balance sheet of the Company under generally accepted accounting principles.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 615 to act on behalf of the Trustee to
authenticate Securities of one or more series.
“Authorized Officer” means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, a Vice Chairman of the Board, a Vice Chairman or a Vice President, the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, its Secretary, any Assistant Secretary or any
other officer, manager or agent of the Company duly authorized pursuant to a Board Resolution to act in respect of matters relating to this Indenture.
“Board of Directors” means either the board of directors, board of managers or similar governing body of the Company or any duly
authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary or an Authorized Officer of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of this Indenture refers to
action to be taken pursuant to a Board Resolution (including but not limited to the establishment of any series of the Securities and the forms and terms thereof) such action may be taken by any committee, officer or employee of the Company
authorized to take such action by a Board Resolution.
2
“Book-Entry Security” means a Security in the form prescribed in Section 303
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 such nominee.
“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in
the Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions or trust companies in that Place of Payment or other location are authorized or obligated by law, regulation or executive
order to close, except as otherwise specified pursuant to Section 301.
“Code” means the Internal Revenue Code of 1986, as
amended from time to time.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this Indenture.
“Company Request” or
“Company Order” means a written request or order signed in the name of the Company by an Authorized Officer and delivered to the Trustee.
“Consolidated Net Assets” means the aggregate amount of assets (less applicable reserves and other properly deductible items) after
deducting therefrom all current liabilities (excluding any indebtedness for money borrowed having a maturity of less than 12 months from the date of the most recent consolidated balance sheet of the Company but which by its terms is renewable or
extendable beyond 12 months from such date at the option of the borrower) all as set forth on the most recent annual or quarterly consolidated balance sheet of the Company filed with the Commission (or, if the Company no longer files reports with
the Commission, published by the Company) and computed in accordance with generally accepted accounting principles.
“Corporate Trust
Office” means a designated corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at 2 North LaSalle,
Suite 1020, Chicago, Illinois 60602, Attn: Corporate Trust Administration.
“Debt” means a note, bond, debenture or other
similar evidence of indebtedness for money borrowed.
“Defaulted Interest” has the meaning specified in Section 308.
3
“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 Book-Entry Securities, the Person designated as Depositary for such series by the Company pursuant to Section 301, which Person shall be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, or any successor thereto; 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.
“EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval system, or any successor system
established by the Commission for the gathering and retrieval of information for public availability.
“Event of Default” has
the meaning specified in Section 501.
“Expiration Date” has the meaning specified in Section 104(e).
“FATCA” has the meaning specified in Section 616.
“FATCA Withholding Tax” has the meaning specified in Section 616.
“Floating Rate Security” means a Security which provides for the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified pursuant to Section 301.
“Funded Debt” means all Debt
having a maturity of more than 12 months from the date as of which the determination is made or having a maturity of 12 months or less but by its terms being renewable or extendable beyond 12 months from such date at the option of the borrower, but
excluding any such Debt owed to the Company or a Restricted Subsidiary.
“Holder” means a Person in whose name a Security is
registered in the Security Register.
“Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into, or one or more Board Resolutions or Officer’s Certificates setting forth or modifying the terms of a series of Securities, pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such supplemental indenture, Board Resolution or Officer’s Certificate, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term “Indenture” shall also include the forms and terms of particular series of Securities established pursuant to Section 301.
“Indexed Security” means any Security which provides that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
“Interest”, when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
4
“Interest Payment Date”, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
“Lien” means a pledge, mortgage, lien, encumbrance or security
interest.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment or repurchase at the option of the Holder thereof, notice of exchange or
conversion or otherwise.
“Officer’s Certificate” means a certificate signed by an Authorized Officer of the Company and
delivered to the Trustee.
“Operating Property” means any real property or equipment located within the United States and used
primarily for manufacturing or research and development by the Company or any of its Subsidiaries that has a net book value (after deduction of accumulated depreciation) in excess of 2.0% of Consolidated Net Assets, other than any such real property
or equipment (i) which is financed by obligations issued by a state, commonwealth, territory or possession of the United States of America, or any political subdivision or governmental authority of any of the foregoing, or the District of
Columbia or (ii) which, in the opinion of the Board of Directors of the Company, or of any director or directors and/or the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating
Officer or the Treasurer of the Company authorized by that board or committee to so act with respect thereto, is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries taken as a whole.
“Opinion of Counsel” means a written opinion of counsel reasonably acceptable to the Trustee, who may be counsel for the Company
(including an employee of the Company); provided, that the General Counsel or other counsel who is an employee of the Company shall not be deemed unacceptable to the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or if the Security is redeemed prior to the Maturity thereof.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture (including Securities held by a Company or an Affiliate of the Company), except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and segregated and held in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided, that if such Securities are to be
redeemed prior to their Stated Maturity, notice of such redemption has been duly given pursuant to Section 1104 of this Indenture or provision therefor satisfactory to the Trustee has been made;
5
(iii) Securities, except to the extent provided in Sections 1302 and 1303, with
respect to which the Company has effected defeasance or covenant defeasance as provided in Article Thirteen;
(iv)
Securities that have been converted or exchanged for other securities pursuant to Section 301; and
(v) Securities
which have been paid pursuant to Section 307 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other action hereunder, or whether sufficient funds are available for redemption or for any other purpose, and for the purpose of making the calculations required by
Section 313 of the Trust Indenture Act, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of
such determination upon acceleration of the Maturity thereof pursuant to Section 502, (b) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined pursuant to Section 301, (c) the principal amount of a Security denominated in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent of the principal amount of such Security, determined in the manner provided pursuant to Section 301 on the date of original issuance (or, in the case of a Security described in clause (a) or (b) above, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount determined as provided in clause (a) or (b) above), (d) the principal amount of any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301,
and (e) except for the purpose of making the calculations required by Section 313 of the Trust Indenture Act, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (provided that, in connection with any offer by the Company or any obligor to purchase Securities, Securities tendered by a Holder shall be deemed to be Outstanding until the date of purchase),
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
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“Paying Agent” means any Person authorized by the Company to pay the principal of or
any premium or interest on any Securities on behalf of the Company.
“Person” means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, estate, unincorporated organization, limited liability company or government or any agency or political subdivision thereof or any other legal entity.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as specified pursuant to Sections 301 and 1002.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 307 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 301, shall be an Interest Payment Date only.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 301, shall be an Interest Payment Date only.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified
for that purpose pursuant to Section 301.
“Required Currency” has the meaning specified in Section 116.
“Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant vice president or any other
officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of the Indenture.
“Restricted Intercompany Securities” means any shares of stock or Debt of any Restricted Subsidiary owned or held by the Company or
any other Restricted Subsidiary.
“Restricted Operating Property” means any Operating Property owned or leased by the Company or
any Restricted Subsidiary.
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“Restricted Subsidiary” means any Subsidiary of the Company that owns any Operating
Property.
“Sale and Leaseback Transaction” means any arrangement with any bank, insurance company or other lender or investor
(other than the Company or another Restricted Subsidiary) providing for the leasing by the Company or any Restricted Subsidiary of any Operating Property (except a lease for a temporary period not to exceed three years by the end of which it is
intended that the use of such Operating Property by the lessee will be discontinued), which was or is owned or leased by the Company or a Restricted Subsidiary and which has been or is to be sold or transferred, more than 120 days after the
acquisition or the completion of construction and commencement of full operation thereof, by the Company or such Restricted Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such Operating Property.
“Securities” has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under this Indenture.
“Security Register” and
“Security Registrar” have the respective meanings specified in Section 306.
“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 308.
“Stated Maturity”, when used
with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any corporation of which at least a majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned by the Company, or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” or “TIA” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Unrestricted Subsidiary” means any Subsidiary other than a Restricted Subsidiary.
8
“U.S. Government Obligations” has the meaning specified in Section 1304.
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president”.
Section 102.
Compliance
Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any application or
request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates or opinions as may be required under the Trust Indenture Act, including an Officer’s
Certificate and an Opinion of Counsel, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement
that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with.
Section 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or representations by counsel or an opinion of counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate, representations or opinion with respect to the matters upon which such officer’s certificate or opinion is based are erroneous. Any such certificate or representations of counsel or opinion of counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
9
representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. To the extent permitted by applicable law, all applications, requests, consents, certificates, statements, opinions or other instruments
provided under this Indenture shall be without personal recourse to the individual executing the same and may include an express statement to such effect.
Section 104.
Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The Holder of a Book-Entry Security may grant proxies and otherwise authorize any Person, including owners of
beneficial interests in such Book-Entry Security, to take any action that a Holder is entitled to take under this Indenture.
(b) The fact
and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.
(c) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not
set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall
10
automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
(d) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507, or (iv) any direction
referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration
Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in
Section 106.
(e) With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may
designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities of the relevant series, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party
hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
(f) Without limiting
the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such principal amount.
(g) The ownership of Securities shall be
proved by the Security Register.
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(h) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing (including telecopy or e-mail) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration; or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing (including telecopy) or mailed, first-class postage prepaid or airmail postage prepaid if sent from outside the United States, to the Company addressed to it at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Treasurer.
The Trustee
agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an
incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added
or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Notwithstanding anything to the contrary contained herein, as long as the Securities of any series are in the form of a Book-Entry Security,
notice to the Holders may be made electronically in accordance with procedures of the Depositary.
Any such Act or other document shall be
in the English language, except that any published notice may be in an official language of the country of publication.
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Section 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or transmitted by e-mail to such Holders as their names and addresses appear in the Security Register within the time prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail or e-mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
In any case where notice to Holders is given by mail or e-mail, neither the failure to mail or e-mail such notice nor any defect in any notice
so mailed or e-mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, and any notice which is mailed or e-mailed in the manner herein provided shall be conclusively deemed to have been duly given
and received by such Holder, whether or not such Holder actually receives such notice. In any case where notice to Holders is given by publication, any defect in any notice so published as to any particular Holder shall not affect the sufficiency of
such notice with respect to other Holders, and any notice which is published in the manner herein provided shall be conclusively presumed to have been duly given. Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance on such waiver.
Section 107.
Conflict with Trust Indenture
Act.
This Indenture is subject to, and shall be governed by, the provisions of the Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with the duties imposed on any person by the provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture Act shall control. If any provision
hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act which is automatically deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such provision of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, such provision shall be deemed to apply to this Indenture as so modified or excluded.
Section 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109.
Assignment; Successors and Assigns.
The Company shall have the right at all times to assign any of its respective rights or delegate its obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided that, in the event of any such assignment or delegation, the Company shall remain primarily liable for all such obligations. All covenants and agreements in this Indenture by the
parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
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Section 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111.
Benefits of
Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, except to the extent
that the Trust Indenture Act shall be applicable.
Section 113.
Legal Holidays.
Unless otherwise provided pursuant to Section 301 with respect to any series of Securities or in any Security, in any case where any
Interest Payment Date, Redemption Date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of the
Securities of any series which specifically states otherwise)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date, the Redemption Date, or at the Stated Maturity or Maturity; provided, that no interest shall accrue for the intervening period.
Section 114.
Act of Holders when Securities are Denominated in Different Currencies.
Whenever any action or Act is to be taken hereunder by the Holders of two or more Series or Issues of Securities denominated in different
currencies, then, for the purposes of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a currency other than United States dollars shall be deemed to be that amount
of United States dollars that could be obtained for such principal amount on the basis of the spot rate of exchange for such currency as determined by the Company or by an authorized exchange rate agent and evidenced to the Trustee by an
Officer’s Certificate as of the date the taking of such action or Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to the Trustee. An exchange rate agent may be authorized in advance or from time
to time by the Company, and may be the Trustee or its Affiliate. Any such determination by the Company or by any such exchange rate agent shall be conclusive and binding on all Holders and the Trustee, and neither the Company nor such exchange rate
agent shall be liable therefor in the absence of bad faith.
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Section 115.
Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.
Section 116.
Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolution
relating thereto, to any currency shall be of the essence. In the case of any Security denominated in any currency (the “Required Currency”) other than United States dollars, except as otherwise provided therein or in the related
Authorizing Resolution, the obligation of the Company to make any payment of principal, premium or interest thereon shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the Trustee timely holding the full amount of the Required Currency then due and payable. If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to exchange such currency for the Required Currency. The costs and risks of any such exchange, including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any shortfall or delinquency in the full amount of Required Currency then due and payable, and in no circumstances shall the Trustee be liable therefor. The Company hereby
waives any defense of payment based upon any such tender or recovery which is not in the Required Currency, or which, when exchanged for the Required Currency by the Trustee, is less than the full amount of Required Currency then due and payable.
Section 117.
No Security Interest Created.
Except as otherwise provided pursuant to Section 301 with respect to a series of Securities, nothing in this Indenture or in the
Securities, express or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
Section 118.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
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ARTICLE TWO
Security Forms
Section 201.
Forms Generally.
The Securities of each series shall be in substantially the form or forms as shall be established in or pursuant
to a Board Resolution, and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on or in which
any series of the Securities may be listed or included or Depositary therefor, or to conform to usage, all as may, be determined by the officers executing such Securities, as conclusively evidenced by their execution of the Securities. If the form
of Securities of any series is established by, or by action taken pursuant to, a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities of each series may be printed, lithographed or engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as conclusively evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[insert any legend required by the Code and the regulations thereunder or a Depositary.]
MONSANTO COMPANY
[title of Security]
M
ONSANTO
C
OMPANY
, a corporation duly organized and existing under the laws of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of Dollars on
, and to pay interest thereon from or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on and in each year, commencing
, at the rate of [ ]% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at
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the close of business on the Regular Record Date for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company
maintained for that purpose in, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register, provided
that such Person shall have given the Trustee written wire instructions at least five Business Days prior to the applicable Interest Payment Date. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
[If the Security is payable in other than US dollars, insert the appropriate provision.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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MONSANTO COMPANY
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By:
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Title:
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Attest:
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Title:
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Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, as of July 1, 2014 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon Trust
Company, N.A., as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof,
initially limited in aggregate principal amount to $ .
[If the
Securities are redeemable at the option of the Company, include redemption provisions.]
[If the Securities are subordinated,
include subordination provisions.]
[If the Securities are redeemable through a mandatory sinking fund, include the following:]
[The sinking fund for the Securities of this series provides for the redemption on
in each year beginning with the year and ending with the year
of [not less than $ (“mandatory sinking fund”) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made [in the inverse order in which they become due].]
[If the Securities do not have a sinking fund, include the following:]
The Securities of this series do not have the benefit of any sinking fund obligations.
[If the Securities are subject to redemption, include the following:]
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
[If the Securities are not subject to
redemption, include the following:]
The Securities of this series are not redeemable prior to maturity.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security and/or certain restrictive covenants
and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
[If the Security is not an Original Issue Discount Security, include the following:]
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in the Indenture.
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[If the Security is an Original Issue Discount Security, include the following:]
If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of
this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of
and premium and interest, if any, on the Securities of this series shall terminate.
[If the Security is an Indexed Security, include
the appropriate provision.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be adversely affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each series to be adversely affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
[If the Security is a Book-Entry Security, include the following:]
If at any time the Depositary for this Security notifies the Company that it is unwilling or unable to continue as Depositary for this
Security or if at any time the Depositary shall no longer be eligible under the Indenture with respect to this Security, and if a successor Depositary
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eligible under the Indenture for this Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s
election that the Securities of this Issue be represented by a Book-Entry Security shall no longer be effective with respect to this Security, and the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication and
delivery of definitive Securities shall authenticate and deliver, Securities in definitive form in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. The Company may at any time and in its
sole discretion determine that the Securities of this Series shall no longer be represented by Book-Entry Securities. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order, shall authenticate and deliver,
Securities of this Series in definitive form and in an aggregate principal amount equal to the principal amount of the Book-Entry Security or Securities representing this Series in exchange for such Book-Entry Security or Securities.
No Holder of any Securities shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture or for the
appointment of a receiver or trustee, or for any other remedy under the Indenture, unless (1) the Trustee shall have received written notice from such Holder of a continuing Event of Default in respect of such Securities; (2) the Trustee
shall have received a written request from the Holders of not less than 25% in principal amount of the Outstanding Securities of the series in respect of which the Event of Default has occurred to institute proceedings in respect of such Event of
Default in its own name as trustee under the Indenture; (3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such
60 day period by the Holders of a majority in principal amount of the Outstanding Securities of such series.
The Securities of this
series are issuable only in registered form without coupons in denominations of $ and multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the
principal of (or premium, if any) or the interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived and released.
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Prior to due presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes (subject to Section 308 of the Indenture), whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
Section 204. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
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The Bank of New York Mellon Trust Company, N.A.,
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As Trustee
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By:
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Authorized Signatory
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ARTICLE THREE
The Securities
Section 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. There shall be established in or
pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any series, to the extent applicable:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series
from Securities of any other series) and whether such Securities are senior or subordinated;
(2) the aggregate principal amount of the
Securities of the series and 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 305, 306, 307, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered
hereunder);
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(3) if other than a minimum denomination of $2,000 and integral multiples of $1,000 in excess
thereof, the denominations in which Securities of the series shall be issuable;
(4) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(5) the date or dates on which or periods during which the Securities of the series may be issued, and the date or dates or the method by which
such date or dates will be determined, and on which the principal, or any installments of principal of (and premium, if any, on) the Securities of such series are or may be payable (which, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time to time as set forth in the Securities of the series issued from time to time);
(6) the rate or rates at which the Securities of the series shall bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(7) the terms of the subordination of the Securities of such series, if any, and any other
provisions relevant to such subordination;
(8) the rights, if any, to defer payments of interest on any Securities of the series by
extending the interest payment period, and the duration of such extensions;
(9) if other than the Corporate Trust Office of the Trustee,
the place or places where the principal of and any premium and interest on Securities of the series shall be payable;
(10) the currency,
currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section 101;
(11) the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(12) if
the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated
to be payable, the currency, currencies or currency units in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the other
terms and conditions upon which such election is to be made;
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(13) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof or upon redemption thereof or the method by which such portion shall be determined;
(14) the obligation, if any, of the Company to redeem, purchase or offer to purchase Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or upon other conditions or at the option of a Holder thereof and the period or periods (or the methods of determination of such a period or periods) within which or the dates on which, the price or
prices at which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid, purchased or offered to be purchased, in whole or in part, pursuant to such obligation;
(15) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to
an index, formula or other method, the index, formula or other method by which such amounts shall be determined;
(16) if the amount
Outstanding of an Indexed Security for purposes of the definition of “Outstanding” is to be other than the principal face amount at original issuance, the method of determination of such amount;
(17) if applicable, that either or both of Section 1302 or 1303 will not apply to the Securities of such series and any provisions in
modification of, in addition to, or in lieu of such provisions;
(18) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
(19) whether the Securities of such series will be
convertible into or exercisable or exchangeable for shares of common stock, preferred stock or into other securities or other property (whether or not issued by, or the obligation of, the Company) and, if so, the terms and conditions upon which such
Securities will be so convertible, exercisable or exchangeable, including the conversion, exercise or exchange price and the conversion, exercise or exchange period, including provisions for adjustments thereto;
(20) whether the Securities of the series shall be issued in whole or in part in the form of one or more Book-Entry Securities and, in such
case, the Depositary with respect to such Book-Entry Security or Securities and the circumstances under which any Book-Entry Security may be registered for transfer or exchange, or authenticated and delivered, in the name of a Person other than such
Depositary or its nominee, if other than as set forth in Section 306;
(21) any additional, modified or different covenants or Events
of Default applicable to one or more particular series of Securities; and
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(22) the designation, if any, of any depositaries, trustees (if other than the applicable
Trustee), Paying Agents, Authenticating Agents, Security Registrars (if other than the Trustee) or other agents with respect to the Securities of the series;
(23) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except as to the issue price and issue date, and,
in some cases, the first Interest Payment Date, which, as set forth above, may be determined by the Company from time to time as to Securities of a series if so provided in or established pursuant to the authority granted in or pursuant to a Board
Resolution or in any such indenture supplemental hereto, and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the
Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series or to establish additional terms of any series of Securities, which additional terms shall only be applicable to unissued or additional Securities of such series.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth, or providing the manner for determining, the terms of the
series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified pursuant to
Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in a minimum denomination of $2,000 and integral multiple of $1,000 in excess thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver or make available
for delivery such Securities; provided, however, that in the case of Securities
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of a series that are not to be originally issued at one time, the Trustee shall authenticate and deliver or make available for delivery such Securities from time to time in accordance with such
other procedures (including, without limitation, the receipt by the Trustee of electronic instructions from the Company or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee. If the form or forms or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 201, that
such form or forms have been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have
been, or in the case of Securities of a series that are not to be originally issued at one time will be, established by or pursuant to a Board Resolution as permitted by Section 301, that such terms have been, or in the case of Securities of a
series that are not to be originally issued at one time will be, established in conformity with the provisions of this Indenture, subject, in the case of Securities of a series that are not to be originally issued at one time, to any conditions
specified in such Opinion of Counsel; and
(c) to the effect that such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and subject to such other exceptions as shall be at the time
customary with respect to enforceability opinions; provided, that such Opinion of Counsel need express no opinion as to whether a court in the United States would render a money judgment in currency other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issuance of
such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such series if such documents, with appropriate modifications to cover such future issuances, are delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.
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Each Security shall be dated the date of its authentication unless otherwise specified in or
pursuant to the Board Resolution relating thereto.
No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory thereof or by an Authenticating
Agent, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Book-Entry
Securities
If the Company shall establish pursuant to Section 301 that the Securities of a series are to be issued in whole
or in part in the form of one or more Book-Entry Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more
Book-Entry Securities in temporary or permanent form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more
Book-Entry Securities, (ii) shall be registered in the name of the Depositary for such Book-Entry Security of Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary’s instruction and (iv) shall bear a legend substantially to the following effect (or such other legend as may be prescribed by the Depositary): “Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Each Depositary designated pursuant to
Section 301 for a Book-Entry Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Beneficial owners of part or all of a Book-Entry Security shall be subject to the rules of the Depositary as in effect from time to time.
The Company, the Trustee and the Paying Agent shall not be responsible for any acts or omissions of the Depositary, for any Depositary records of beneficial interests or for any transactions between the Depositary and beneficial owners.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive form, a
Book-Entry Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series or to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
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If at any time the Depositary for any Securities of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 306, the Company shall appoint a successor Depositary
eligible under Section 306, with respect to the Securities of such series. If a successor Depositary eligible under Section 306 for the Securities of such series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company’s election that the Securities of such series be represented by one or more Book-Entry Securities shall no longer be effective with respect to the Securities of such series and the
Company shall execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver, Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Book-Entry Security or Securities representing such series in exchange for such Book-Entry Security or Securities.
The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more
Book-Entry Securities shall no longer be represented by such Book-Entry Security or Securities. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Book-Entry Security or Securities representing such series in exchange for such
Book-Entry Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a series of Securities
represented by a Book-Entry Security, the Depositary for such Book-Entry Securities may surrender a Book-Entry Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge:
(i) to each Person specified by such Depositary a new Security or Securities of the same series, of any authorized denomination
as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Book-Entry Security; and
(ii) to such Depositary a new Book-Entry Security in a denomination equal to the difference, if any, between the principal
amount of the surrendered Book-Entry Security and the aggregate principal amount of Securities delivered pursuant to clause (i) above.
In any exchange provided for in this Section, the Company will execute and the Trustee will authenticate and deliver Securities in definitive
registered form in authorized denominations.
Upon the exchange of a Book-Entry Security for Securities in definitive registered form,
such Book-Entry Security shall be cancelled by the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
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No holder of any beneficial interest in any Book-Entry Security held on its behalf by a
Depositary (or its nominee) shall have any rights under this Indenture with respect to such Book-Entry Security or any Security represented thereby, and such Depositary may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Book-Entry Security or any Security represented thereby for all purposes whatsoever. None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a Book-Entry Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing,
with respect to any Book-Entry Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and such holders of beneficial interest, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominees) as Holder of any Security.
Section 305. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver or make available for delivery, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination for Securities of such series, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series, of a like Stated Maturity and with like terms and
provisions, upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for such series, without charge to the Holder, except as provided in Section 306 in connection with a transfer.
Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver or make available for delivery in exchange therefor one or more definitive Securities of
the same series, of authorized denominations and of a like aggregate principal amount, Stated Maturity and like terms and provisions. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
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Section 306. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any
other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers and exchanges of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers and exchanges of Securities as herein provided; provided,
however, that the Company may appoint co-Security Registrars unless the terms of any series of Securities provide otherwise.
Upon
surrender for registration of transfer of any Security of any series at the office or agency of the Company maintained for such purpose for that series, the Company shall execute, and the Trustee shall authenticate and deliver or make available for
delivery, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
Except as otherwise provided in Section 305 and this Section 306, at the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver or make available for delivery, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and the Trustee duly executed, by the Holder thereof or such Holder’s attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities except as provided in
Section 307, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 305, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the transmission of a notice of redemption of Securities of that series selected for redemption under Section 1103 and ending at
the close of business on the day of such transmission, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
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Notwithstanding the foregoing, any Book-Entry Security shall be exchangeable pursuant to this
Section 306 for Securities registered in the names of Persons 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
Book-Entry Security or if at any time such Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended and the Company does not appoint a successor Depositary within 90 days after receipt by it of such
notice or after it becomes aware of such cessation, (ii) the Company executes and delivers to the Trustee a Company Order that such Book-Entry Security shall be so exchangeable or (iii) there shall have occurred and be continuing an Event
of Default with respect to the Securities. Any Book-Entry Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as such Depositary shall direct.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests in a Book-Entry Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 307. 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 or make
available for delivery 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 the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, 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, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in respect 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 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.
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The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 308. Payment
of Interest; Interest Rights Preserved.
Except as otherwise provided pursuant to Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or agency maintained for such purpose pursuant to Section 1002; provided, however, that at the option of the Company, interest on Securities of any series that bear
interest may be paid (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained by the Person entitled thereto as specified in
the Security Register, provided that such Person shall have given the Trustee written wire instructions at least five Business Days prior to the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which date shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in
Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing
provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 308) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 310. Cancellation.
Except as otherwise provided pursuant to Section 301 with respect to any series of Securities, all Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by the Trustee and such cancellation shall be noted conspicuously on each such Security. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures. The acquisition of any Securities by the Company shall not
operate as a redemption or satisfaction of the indebtedness represented thereby unless and until such Securities are surrendered to the Trustee for cancellation.
Section 311. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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Section 312. CUSIP and ISIN Numbers.
The Company in issuing the Securities of any series may use “CUSIP” and “ISIN” numbers (in each case, if then generally in
use), and, if so, the Trustee shall use such numbers in notices of redemption or exchange with respect to such series 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 of that series or as contained in any notice of a redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Securities of that series, and any such
redemption or exchange shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Securities of any series (if all series issued under this Indenture are not to be affected), shall upon
Company Request cease to be of further effect with respect to Securities of any series specified in such Company Request (except as to any surviving rights of registration of transfer, exchange or replacement of such Securities herein expressly
provided for and rights to receive payments of principal (and premium, if any) and interest on such Securities), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such series of Securities, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i) such Securities of such series
which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 307 and (ii) such Securities of such series for whose payment money has theretofore been deposited in trust or segregated and
held in trust with the Trustee or any Paying Agent by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all 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 the Company either complies with any other condition or terms provided pursuant to Section 301, or if not so specified, in the case of (B)(i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds held in trust solely for the benefit of the Holders, cash in United States Dollars in an amount, U.S. Government Obligations (as defined in Section 1304) which
through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due
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date of any payment, money in an amount, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on such Securities not delivered to the Trustee for cancellation for principal, premium, if any and accrued interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and to
any Authenticating Agent under Section 615 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402, Article Six and the
last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
The Trustee and any Paying Agent shall promptly pay or return to the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest on the Securities of any series for which money or U.S. Government Obligations have been deposited pursuant to Section 401.
All money and U.S. Governmental Obligations deposited with the Trustee pursuant to Section 401 (or into which such money and U.S.
Governmental Obligations are reinvested) shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for payment of which such money has been deposited with the Trustee; but such money and U.S. Governmental
Obligations need not be segregated from other funds except to the extent required by law or the provisions of the last paragraph of Section 1003.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or
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governmental body, unless it is inapplicable to a particular series or is specifically deleted or modified in the Board Resolution (or action taken pursuant thereto), Officer’s Certificate
or supplemental indenture pursuant to which such series of Securities is issued or has been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of such series at its
Maturity; or
(3) default in the deposit of any sinking fund installment in respect of such series, when and as payable by the terms of
Section 1201 hereof or by the terms of a Security of that series, and continuance of such default for a period of 30 days; or
(4)
default in the performance, or breach, of any covenant or warranty of the Company in this Indenture with respect to Securities of a series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with, or which has been included in this Indenture solely for the benefit of Securities of a series other than such series), and continuance of such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of all series affected thereby then Outstanding (or, with respect to any
such covenant or warranty that is not applicable to all series of Securities, by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of all series to which it is applicable) (in each case voting as a single class)
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order undismissed or unstayed and in effect
for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under any applicable federal
or state bankruptcy, insolvency or other similar law, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any such law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of all or substantially all of its property, or the making by it of an
assignment for the benefit of creditors, or the public announcement by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
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(7) any other Event of Default provided with respect to Securities of that series pursuant to
Section 301.
Section 502. Acceleration of Maturity; Rescission and Annulment.
Unless otherwise provided with respect to Securities of any series pursuant to Section 301, if an Event of Default (other than an Event of
Default described in clause 5 or 6 of Section 501) with respect to Securities of one or more series at the time Outstanding occurs and is continuing, then in every such case, unless the principal of all Securities shall have already become due
and payable, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of the affected series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of such series to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration such principal amount (or, in the case of Original Issue Discount Securities or Indexed Securities, such specified amount) shall become immediately due and payable. Upon payment of
such amount, all obligations of the Company in respect of the payment of principal of (and premium, if payable) and interest on the Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to Securities of one or more series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of such series, (B) the principal of (and premium, if any, on) any Securities of those series which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of such series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such
rescission and waiver shall affect any subsequent default or impair any right consequent thereon.
Unless otherwise provided with respect
to Securities of any series pursuant to Section 301, if an Event of Default described in clause 5 or 6 of Section 501 occurs, the Outstanding Securities shall
ipso facto
become immediately due and payable without need of any
declaration or other act on the part of the Trustee or any Holder.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof
and such default continues for the period of grace, if any, provided for with respect to such payment,
the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments directly to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and may be a member of a creditors’ or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities of any series in respect of which money has been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities of such series
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 any premium and interest, respectively;
and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any action or proceeding, judicial or otherwise, at law or in equity
or in bankruptcy or otherwise, with respect to this Indenture, or for the appointment of a receiver, trustee liquidator, custodian, sequestrator (or similar official), or for any other remedy hereunder, unless
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(1) an Event of Default with respect to that series shall have occurred and be continuing and
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have
offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee before or during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders or of the Holders of Outstanding Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders of Securities of such series or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of
Securities of such series.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 308) any interest on such Security on the Stated Maturity or 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 509.
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 and rights hereunder and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
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Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 307 and as otherwise provided in Section 507, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission
Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series affected thereby, voting as a single
class, 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 by this Indenture on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture or the Securities,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series affected thereby, voting as a single
class, may on behalf of the Holders of all the Securities of all such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which under Section 902 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected; provided that a majority in principal amount of the Outstanding Securities of such series may rescind and annul a declaration of acceleration with respect to Securities of a given series, as
provided in Section 502.
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Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by such Holder’s 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, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including counsel fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided,
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, the Trustee or the Holders of 10% in aggregate
principal amount of the Outstanding Securities of any series.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601.
Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Except during the continuance of an Event of Default with respect to the Securities of any series,
(1) subject to the
provisions of the TIA, the Trustee undertakes to perform such duties and only such duties as are set forth in this Indenture, 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 be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
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(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection
(a) of this Section;
(2) the Trustee shall not be liable for any error of judgement made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Sections 101, 104 and
512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall, within 90 days, give the Holders of
Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of such series of Securities; and
provided, further, that in the case of any default of the character specified in Section 501(4) no such notice to Holders shall be given until at least 60 days after the occurrence thereof.
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Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its reasonable discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
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(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact 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;
(j) the rights privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded; and
(l) in no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities of any series.
Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Subject to the provisions of Section 608, the Trustee may become and act as trustee under other indentures
under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee.
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Section 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay
to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as shall be determined to have been caused by its negligence or willful misconduct; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The Trustee shall
have a lien prior to the Securities upon all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of
particular Securities.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 501(5) or Section 501(6), 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.
The provisions
of this Section shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310 (b) of the TIA.
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $100,000,000 and has an office or agency in New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any federal or state
supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee
may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the
Trustee within 60 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series (i) by Act of the Holders of
a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company or (ii) if there shall not have occurred and be continuing an Event of Default, by written notice from the Company to the
Trustee. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 60 days after the giving of such notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the
Trustee shall fail to comply with Section 608 with respect to the Securities of any series after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with respect to the Securities of any series and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
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then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the Trustee and
appoint a successor Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of any series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (except as provided in
Section 610(c)) (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of such series of Securities and accepted appointment in the manner required by Section 611, any Holder who
has been a bona fide Holder of a Security of such series for at least six months may, subject to Section 514, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; provided, however, that to the extent that such property and money is not held by the Trustee in trust for the benefit of the Holders of particular Securities, such retiring Trustee shall transfer
and deliver to such successor Trustee such property and money upon payment of its charges hereunder.
(c) Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) and (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person shall be
otherwise qualified and eligible under this Article, without the execution or filing of any
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paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities
shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
Section 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act. A Trustee who has resigned or been removed is subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 614. Investment of Certain Payments Held by the
Trustee.
Any amounts held by the Trustee hereunder, other than pursuant to Article Thirteen hereof, may be invested by the Trustee
from time to time at the direction of the Company in such investments as may be specified by the Company in writing and reasonably agreed to by the Trustee from time to time; provided, that in investing trust funds pursuant to the terms of this
Section and liquidating any investments held in trust hereunder, the Trustee may, to the extent permitted by law, purchase securities (including for the purposes of this paragraph securities as to which the Trustee or a Trustee Affiliate (as
defined below) is the issuer or guarantor) from, and sell securities to, itself or any Trustee Affiliate and purchase securities underwritten by, or in which a market is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a
“Trustee Affiliate” shall mean an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Trustee. Any income or gain realized as a result of any such
investment shall be promptly distributed (in no event later than the next Business Day) to the Company after any intended amounts have been paid to the Holders entitled thereto, except after the occurrence and during the continuance of an Event of
Default. The Trustee shall have no liability to the Company for any loss, fee, tax or other charge resulting from any investment, reinvestment or liquidation of an investment made in accordance with this Section, and shall bear no expense in
connection with any investment pursuant to this Section. Any such investment may be sold (without regard to maturity date) by the Trustee whenever necessary to make any distribution required by this Indenture. Nothing herein shall require the
Trustee to invest funds held by it pursuant to the last paragraph of Section 1003.
Section 615. Appointment of Authenticating Agent.
As long as any Securities of a series remain Outstanding, upon a Company Request, the Trustee shall appoint an Authenticating
Agent or Agents, for such period as the Company shall elect, with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to Section 307, and Securities so authenticated by such Authenticating Agent shall be entitled to the benefits of this
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Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee for such series or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee for such series by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $100,000,000 and subject to supervision or examination by
federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time, and if it shall
cease to be eligible, shall, resign by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section with respect to one or more or all
series of Securities, the Trustee for such series shall, upon Company Request, appoint a successor Authenticating Agent which shall be acceptable to the Company and shall provide notice of such appointment to the Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties and responsibilities of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this section.
The Company agrees to pay to each Authenticating Agent for each series from time to time reasonable compensation for its services under this
Section. If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Dated:
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T
HE
B
ANK
OF
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EW
Y
ORK
M
ELLON
T
RUST
C
OMPANY
, N.A., A
S
T
RUSTEE
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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Section 616. FATCA Withholding.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related
to the Indenture and the Securities in effect from time to time (“Applicable Tax Law”) to which a foreign financial institution, issuer, trustee, paying agent or other party is subject, the Company and the Trustee agree (i) that it
shall be the obligation of the Trustee and/or any other Paying Agent to collect any necessary tax forms, such as IRS Form W-8 or W-9 and to file any related reports, and (ii) that the Trustee and any other Paying Agent shall make any
withholding or deduction from payments made by such party under this Indenture to the extent necessary to comply with Applicable Tax Law. The terms of this section shall survive the termination of this Indenture.
ARTICLE SEVEN
Holders’ Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not acting as Security Registrar for the Securities of each series for which it acts as Trustee, the Company will furnish or
cause to be furnished to the Trustee (a) semi-annually, on a date not more than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of such Regular Record Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, as the case may be, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list in similar form and
content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of Holders
(i) contained in the most recent list furnished to the Trustee as provided in Section 701, (ii) received by the Trustee in its capacity as Security Registrar and (iii) filed with it within the two preceding years pursuant to
Section 313(c)(2) of the Trust Indenture Act. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
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(b) The rights of the Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of any such information as to the names and addresses of Holders made pursuant to the Trust Indenture Act), regardless of the source from which such
information was derived.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the first issuance
of Securities hereunder deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The Company promptly will notify the Trustee when any Securities are listed on any stock exchange or delisted therefrom.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided, that any such information, documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days after the same is filed with the Commission; provided, however, that the Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and obtained confidential treatment from the Commission.
All required information, documents
and other reports referred to in this Section 704 shall be deemed filed with the Trustee and transmitted to the Holders at the time such information, documents or other reports are publicly filed with the Commission via EDGAR. Delivery of such
reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no duty to search for or obtain any electronic or
other filings that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving
effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
This Section shall not apply to any merger or consolidation in which the Company is the surviving corporation.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Section 803. Officers’
Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, conveyance, transfer or lease and any such assumption complies with the provisions of this Article before the Trustee shall execute any
supplemental indenture required pursuant to this Article.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to
evidence the succession of another Person to the rights of the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company or other provisions for the benefit of the Holders of all or any series of Securities or to
surrender any right or power herein conferred upon the Company (and if such covenants or other provisions, or such surrender are to be for the benefit of less than all series of Securities, stating that such covenants, provisions and/or surrender
are expressly being included solely for the benefit of such series); or
(3) to add any additional Events of Default with respect to all or
any series of Securities (and if such Events of Default are to be applicable to less than all series, stating that such Events of Default are expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of
the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or
(6) to secure the Securities or to provide that any of the Company’s obligations under any series of Securities shall be guaranteed and
the terms and conditions for the release or substitution of such security or guarantee; or
(7) to establish the form or terms of
Securities of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 611(b); or
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(9) if allowed, without penalty under applicable laws and regulations, to permit payment in the
United States (including any of the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction of principal, premium, if any, or interest, if any, on Securities in bearer form or
coupons, if any; or
(10) to cure any ambiguity or to correct or supplement any provision herein, or in any supplemental indenture, which
may be defective or inconsistent with any other provision herein or to eliminate any conflict between the terms hereof and the Trust Indenture Act; and
(11) to make any other change with respect to matters or questions arising under this Indenture which, in the opinion of counsel to the Company
(which counsel may be an employee of the Company), does not materially adversely affect the interests of the Holders of the Series of Securities affected thereby.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) except as specifically
provided with respect to any series of Securities pursuant to Section 301, change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof (provided that a requirement to offer to repurchase Securities shall not be deemed a redemption for this purpose), or change the currency in which the principal of (and premium, if
any) or interest on such Security is denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or adversely affect the right of the Holder of any Security to require the Company to repurchase such Securities, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or Section 1007, except
to increase any percentage set forth in such Sections or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security of the series affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1007, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be provided with, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate, each stating that
the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise in any material respect.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Unless the Company shall determine, based on an Opinion of Counsel delivered to the Trustee, that the same shall not be required, every
supplemental indenture executed pursuant to this Article shall conform to the requirements of TIA as then in effect.
Section 906. Reference in
Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
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ARTICLE TEN
Covenants
Section 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it
will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of the series in accordance with the terms of the Securities and this Indenture. The principal of (and premium, if any) and interest on Securities
shall be considered paid on the date due if the Paying Agents hold in accordance with this Indenture on that date money, sufficient to pay all principal (and premium, if any) and interest then due and the Paying Agents are not prohibited from paying
such money to the Holders on such date pursuant to the terms of this Indenture. All payments made to any Holder, or upon his or her order, shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability
for moneys payable upon such Security.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Trustee is hereby initially appointed Paying Agent, and the Corporate Trust Office of the Trustee is initially designated as the office or agency for the foregoing purposes. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any series of Securities, it will,
on or before each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2)
give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or received by the Trustee in respect of obligations deposited with the Trustee
pursuant to Article Thirteen, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof (unless the Company has remitted required moneys or property to the appropriate governmental authority under any applicable escheat or abandoned or unclaimed property laws, or has otherwise been discharged
under such laws or laws of similar applicability, in which case such Holder shall look solely to its remedies (if any) under such laws and not to the Company), and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof shall thereupon cease; provided,
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however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be transmitted, in the manner and to the extent
provided by Section 106, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
Section 1005. Limitation upon Liens.
(a) Except as otherwise provided in this Section 1005, the Company will not itself, and will not permit any Restricted Subsidiary to,
create, incur, issue, assume, guarantee or secure any Debt secured by any Liens on any Restricted Operating Property, or on any Restricted Intercompany Securities, without effectively providing that the Securities (together with, if the Company
shall so determine, any other Debt of the Company or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured Debt for so long as
such secured Debt shall be so secured. For the purpose of providing such equal and ratable security, the principal amount of any Securities shall mean the aggregate principal amount of such Securities which are Outstanding, and shall not be less
than that principal amount which could be declared to be due and payable pursuant to Section 502 on the date of the making of such effective provision. The extent of such equal and ratable security shall be adjusted, to the extent permitted by
law, as and when said principal amount changes over time pursuant to Section 502 and any other provision hereof. Nothing contained in this Section shall prevent, restrict or apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Liens on any property or assets of the Company or any Restricted Subsidiary or on any
shares of stock or Debt existing as of the date of this Indenture;
(2) Liens on all property or assets of, or on any shares of stock or
Debt of, any Person existing at the time such Person becomes a Restricted Subsidiary;
(3) Liens on any property or assets or shares of
stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or securing the payment of all or any part of the purchase price or construction cost thereof or securing any Debt incurred prior to,
at the time of or within 120 days after the acquisition of such property or assets or shares of stock or Debt or the completion of any such construction, whichever is later, for the purpose of financing all or any part of the purchase price or
construction cost thereof (provided such Liens are limited to such shares of stock or Debt, property or assets, improvements thereon and the land upon which such property, assets and improvements are located and any other property or assets not then
constituting an Operating Property);
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(4) Liens on any property or assets to secure all or any part of the cost of development,
operation, construction, alteration, repair or improvement of all or any part of such property or assets, or to secure Debt incurred prior to, at the time of or within 120 days after the completion of such development, operation, construction,
alteration, repair or improvement, whichever is later, for the purpose of financing all or any part of such cost (provided such Liens are limited to such property or assets, improvements thereon and the land upon which such property, assets and
improvements are located and any other property or assets not then constituting an Operating Property);
(5) Liens which secure Debt owing
to the Company or another Restricted Subsidiary by a Restricted Subsidiary;
(6) (i) Liens arising from the assignment of moneys due and to
become due under contracts between the Company or any Restricted Subsidiary and the United States of America, any state, commonwealth, territory, or possession thereof or any agency, department, instrumentality or political subdivision of any,
thereof, (ii) Liens in favor of the United States of America, any state, commonwealth, territory or possession thereof or any agency, department, instrumentality or political subdivision of any thereof, pursuant to the provisions of any
contract not directly or indirectly in connection with securing Debt or (iii) Liens arising in connection with obligations issued by a state, commonwealth, territory or possession of the United States of America, or any political subdivision or
governmental authority of any of the foregoing, or the District of Columbia;
(7) any deposit or pledge as security for the performance of
any bid, tender, contract, lease or undertaking not directly or indirectly in connection with the securing of Debt; any deposit or pledge with any governmental agency required or permitted to qualify the Company or any Restricted Subsidiary to
conduct business, to maintain self-insurance or to obtain the benefits of any law pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar matters, or to obtain any stay or discharge in any
legal or administrative proceedings; deposits or pledges to obtain the release of mechanics’, workmen’s, repairmen’s, materialmen’s or warehousemen’s liens or the release of property in the possession of a common carrier;
any security interest created in connection with the sale, discount or guarantee of notes, chattel mortgages, leases, accounts receivable, trade acceptances or other paper, or contingent repurchase obligations, arising out of sales of merchandise in
the ordinary course of business; or other deposits or pledges similar to those referred to in this clause (7);
(8) Liens arising under law
by reason of the nonpayment of taxes, assessments or governmental charges, or of claims for labor, materials or supplies, if (a) the amount, applicability or validity thereof is being contested in good faith by appropriate proceedings or
(b) such Liens are not of material importance to the business, operations, financial condition or results of operations of the Company and its Subsidiaries taken as a whole;
(9) Liens arising by reason of any judgment, decree or order of any court or other governmental authority, so long as any appropriate legal
proceedings which may have been initiated for the review of such judgment, decree or order shall not have been finally terminated or so long as the period within which such proceedings may be initiated shall not have expired; and
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(10) any extension, renewal, substitution or replacement (or successive extensions, renewals,
substitutions or replacements), as a whole or in part, of any of the Liens referred to in clauses (1) through (9) above or the Debt secured thereby; provided that (i) such extension, renewal, substitution or replacement Lien shall be
limited to all or any part of the same property or assets, shares of stock or Debt that secured the Lien extended, renewed, substituted or replaced (plus improvements on such property and any other property or assets not then constituting an
Operating Property) and (ii) in the case of clauses (1) through (3) above, the Debt secured by such Lien at such time is not increased.
Debt created by the Company or any Restricted Subsidiary shall not be cumulated with a guarantee of the same Debt by the Company or any other
Restricted Subsidiary for the same financial obligation.
(b) Notwithstanding the foregoing, Liens which would otherwise be prohibited
under Section 1005(a) above may be incurred if, after giving effect thereto, the aggregate principal amount of all such secured Debt then outstanding that is secured by Liens on Restricted Operating Properties or on Restricted Intercompany
Securities (excluding any secured Debt permitted pursuant to paragraph (a) of this Section 1005), plus Attributable Debt of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions entered into after the
date of this Indenture (other than Sale and Leaseback Transactions permitted by Section 1006(b)), computed without duplication of amounts constituting Debt referred to in paragraph (a) of this Section 1005, would not exceed an amount
equal to 10% of Consolidated Net Assets.
(c) If the Company or any Restricted Subsidiary shall at any time enter into a merger or
consolidation with another corporation or purchase all or substantially all of the assets of another corporation, or if the Company or any Restricted Subsidiary shall convey, transfer or lease its properties and assets substantially as an entirety
to another corporation and if such other corporation has outstanding Debt secured by a mortgage or other lien which, by reason of an after-acquired property clause or similar provision therein contained, would extend, after such merger,
consolidation, sale or purchase, to any Operating Property owned by the Company or such Restricted Subsidiary immediately prior to such merger, consolidation, sale or purchase, or to any or Restricted Intercompany Securities, the Company or such
Restricted Subsidiary shall be deemed to have created a Lien within the prohibition of paragraph (a) of this Section 1005, unless (i) such merger or consolidation involving a Restricted Subsidiary shall constitute a disposition by the
Company of its entire interest in the Restricted Subsidiary, or (ii) either (A) at or prior to the effective date of such merger, consolidation, sale or purchase, such mortgage or lien shall have been released of record or otherwise
satisfied to the extent it would extend to such Restricted Operating Property or Restricted Intercompany Securities or (B) prior to such merger, consolidation, sale or purchase, the Company or such Restricted Subsidiary, as the case may be,
shall have created, as security for the Securities (and, if the Company shall so determine, as security for any other indebtedness of the Company then existing or thereafter created ranking equally with the Securities and any other indebtedness of
the Restricted Subsidiary then existing or thereafter created), a valid lien which, upon completion of said merger, consolidation, sale or purchase, will rank prior to the lien of such mortgage or other lien of such other corporation on such
Restricted Operating Property or Restricted Intercompany Securities.
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Section 1006. Limitation upon Sales and Leasebacks.
The Company will not itself, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction after the date of
this Indenture, unless either:
(a) the Attributable Debt of the Company and its Restricted Subsidiaries in respect of such Sale and
Leaseback Transaction and all other Sale and Leaseback Transactions entered into after the date of this Indenture (other than Sale and Leaseback Transactions permitted by Section 1006(b)), plus the aggregate principal amount of outstanding Debt
at the time which is secured by Liens on Restricted Operating Properties or Restricted Intercompany Securities (excluding any such Debt secured by Liens permitted under Section 1005(a)), would not exceed 10% of Consolidated Net Assets, or
(b) the Company applies, within 120 days after the sale or transfer, an amount equal to the fair market value of the Operating Property so sold
and leased back at the time of entering into such Sale and Leaseback Transaction (as determined by any two of the following: the Chairman or Vice Chairman of the Board, the President, any Vice Chairman, any Vice President, the Treasurer and the
Controller of the Company) to (i) the purchase of any asset or any interest in an asset which would qualify, after purchase, as an Operating Property or (ii) the retirement of Funded Debt (including Securities of any series constituting
Funded Debt) of the Company; provided, that the amount to be applied to the retirement of Funded Debt of the Company shall be reduced by (i) the principal amount of Securities delivered within 120 days after such sale or transfer to the Trustee
for redemption and cancellation, and (ii) the principal amount of Funded Debt, other than Securities, voluntarily retired by the Company within 120 days after such sale. For purposes of clauses (i) and (ii) of the foregoing proviso,
the principal amount of any Securities shall mean the aggregate principal amount of such Securities which are Outstanding and shall not be less than that principal amount which could be declared to be due and payable pursuant to Section 502 at
the time of determination. Notwithstanding the foregoing, no retirement referred to in this subdivision (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted Subsidiary is the lessee in any Sale and Leaseback Transaction,
Attributable Debt shall not include any Debt resulting from the guarantee by the Company or any other Restricted Subsidiary of the lessee’s obligation thereunder.
Section 1007. Waiver of Certain Covenants.
Except as otherwise specified pursuant to Section 301 for Securities of a series, the Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1004 to 1006, inclusive, with respect to the Securities of any series), if before or after the time for such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but
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no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
The Company may, but shall not
be obligated to, fix a record date for the purpose of determining the Persons entitled to waive compliance with any covenant or condition hereunder. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to waive any such compliance, whether or not such Holders remain Holders after such record date.
Section 1008. Compliance Certificate.
Except as otherwise specified pursuant to Section 301 for Securities of a series, the Company will furnish to the Trustee on or before
May 1 in each year (beginning the first May 1 after the date of original issuance of Securities hereunder) a brief certificate (which need not comply with Section 102) from the principal executive, financial or accounting officer of
the Company stating that in the course of the performance by the signer of his or her duties as an officer of the Company he or she would normally have knowledge of any default or non-compliance by the Company in the performance of any covenants or
conditions contained in this Indenture, stating whether or not he or she has knowledge of any such default or non-compliance and, if so, specifying each such default or non-compliance of which the signer has knowledge and the nature thereof. For
purposes of this Section 1008, non-compliance or default shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.
Section 1009. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original
issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of each year and (ii) such other specific information relating to such original issue discount as may be then be relevant under the Code.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified pursuant to Section 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution or Officer’s Certificate or
in another manner specified pursuant to Section 301 for such series of Securities. In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date
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fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in
this Indenture or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all of the Securities of such series and of a specified tenor
are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the preceding sentence. In any case, when more than one Security of a series is registered in the same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Security of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at such Holder’s address appearing in the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the
Redemption Price or, if not then ascertainable, the manner of calculation thereof,
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable; provided in the latter case, the Company shall give the Trustee at least five Business Days (or such shorter period as agreed by the Trustee) prior notice of the date of
the requested giving of such notice.
Section 1105. Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof which are to
be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified pursuant to Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 308.
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If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver or make available for delivery to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Book- Entry Security is so surrendered, such new Security so issued shall be a new Book-Entry Security.
In the case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the
redeemed portion thereof.
ARTICLE TWELVE
Sinking Funds
Section 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified pursuant to Section 301 for Securities of such series.
The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series theretofore purchased or otherwise acquired by the Company (other than any
previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the 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
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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 as provided for by the terms
of such series; 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 1203. Redemption of Securities for
Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period
shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and stating the basis for such credit and that such
Securities have not been previously so credited and will also 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, or cause to be selected, the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
Unless the Company elects to have Section 1302 or Section 1303, as the case may be, not applied to any Securities or any series of
Securities pursuant to Section 301, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, with any modifications thereto as may be specified pursuant to
Section 301 with respect to any series of Securities, shall be applicable to the Securities of such series, and the Company may elect, at its option at any time, to have either Section 1302 or Section 1303 applied to the Outstanding
Securities of such series. Any such election shall be evidenced by a Board Resolution or in another manner specified pursuant to Section 301.
Section 1302. Defeasance and Discharge.
Upon the Company’s exercise of its option to have this Section applied to any series of Securities, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding Securities of such series on and after the date the conditions precedent set forth below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series which shall thereafter be deemed to be “Outstanding” only for the purposes of the Sections
of this Indenture referred to in clauses (A)
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and (B) of this Section, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1304 as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on such Securities when such payments are due, (B) the
Company’s obligations with respect to such Securities under Sections 306, 307, 1002 and 1003 and such obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this Article Thirteen, the Company may exercise its option under this Section 1302 notwithstanding the prior exercise of its option under Section 1303 with
respect to the Securities of such series. Following a defeasance, payment of such Securities may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any series of Securities, the Company shall be
released from its obligations under Sections 801, 1005 and 1006 (and any covenant made applicable to such Securities pursuant to Section 301) and the occurrence of an event specified in Section 501(4) (with respect to any of
Section 801, 1005 or 1006 or any such covenant) (and any other Event of Default applicable to such Securities that are determined pursuant to Section 301 to be subject to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed not to be “Outstanding”
for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 801, 1005 and 1006 (and any other covenant made applicable to such Security pursuant to
Section 301) and any such Events of Default, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any other provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby. Notwithstanding the defeasance by the Company of its obligations under Section 801, any successor shall be required to assume the Company’s obligations under Section 607 as a condition to such succession.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either Section 1302 or Section 1303 to the Outstanding Securities
of or within such series:
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(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount (in such currency, currencies or currency units in which such Securities are then specified as payable at Maturity), or
(B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof in an amount, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest on the Outstanding Securities of such series on the Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments applicable to such Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and such Securities. Before such a
deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article Eleven, which shall be given effect in applying the foregoing. For this purpose, “U.S.
Government Obligations” means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) 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, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depositary 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 depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing (A) on the date of such deposit or (B) insofar as subsections 501(5) and (6) are concerned, at any time during the
period ending on the 91st day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting interest as defined in Section 608 or for purposes of the Trust Indenture Act with respect to any Securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended.
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(4) Such defeasance or covenant defeasance shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound.
(5) In the case of an election under Section 1302, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant
defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302 or the covenant defeasance under Section 1303 (as the case may be) have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (collectively, for purposes of this Section 1305, the “Trustee”) pursuant to Section 1304 in respect of the Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (but not including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof.
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Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1304 which in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 1305 by reason of any order or judgment or any
court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1305; provided, however, that if the Company makes any payment of principal of (and premium, if any) or
interest on any such Security following 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 held by the Trustee or the Paying Agent.
Section 1307. Qualifying Trustee.
Any trustee appointed pursuant to Section 1304 for the purpose of holding trust funds deposited pursuant to that Section shall be
appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for
herein to the related defeasance or covenant defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1401. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer, director, or employee, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations of the
Company, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or employees, as such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such
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incorporator, stockholder, officer, director, or employee, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Securities.
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This instrument may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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MONSANTO COMPANY
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By:
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/s/ Tom D. Hartley
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Name:
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Tom D. Hartley
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Title:
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Vice President and Treasurer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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By:
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/s/ Lawrence Dillard
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Name:
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Lawrence Dillard
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Title:
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Vice President
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