Exhibit 1.1
Execution Version
$600,000,000
CNH
INDUSTRIAL N.V.
4.50% Notes due 2023
UNDERWRITING AGREEMENT
August 4, 2016
BNP P
ARIBAS
S
ECURITIES
C
ORP
.
C
ITIGROUP
G
LOBAL
M
ARKETS
I
NC
.
D
EUTSCHE
B
ANK
S
ECURITIES
I
NC
.
J.P. M
ORGAN
S
ECURITIES
LLC
As
Representatives of the several
Underwriters named in Schedule I attached hereto,
c/o J. P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
CNH Industrial N.V., a public company with limited liability incorporated under the laws of The Netherlands (the
“
Company
”) proposes, upon the terms and conditions set forth in this agreement (this “
Agreement
”), to issue and sell to the several underwriters named in Schedule I hereto (the
“
Underwriters
”), for whom BNP Paribas Securities Corp., Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC are acting as representatives (in such capacity, the
“
Representatives
”), $600,000,000 in aggregate principal amount of the Company’s 4.50% Notes due 2023 (the “
Notes
”). The Notes (i) will have terms and provisions that are summarized in the
Pricing Disclosure Package and Prospectus (each as defined below), and (ii) are to be issued pursuant to an Indenture, to be dated on or around August 18, 2016 (the “
Indenture
”), entered into between the Company and
U.S. Bank National Association, as trustee (the “
Trustee
”) and an officers’ certificate or supplemental indenture pursuant thereto establishing the terms of the Notes. This Agreement is to confirm the agreement
concerning the purchase of the Notes from the Company by the Underwriters.
1.
Representations, Warranties and Agreements
of the Company
. The Company represents, warrants and agrees that:
(a)
Registration Statement
. A registration statement
on Form F-3 (File No. 333-206891) relating to the Notes has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “
Securities Act
”), and
the rules and regulations of the Securities and Exchange Commission (the “
Commission
”) thereunder; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the
Securities Act. As used in this Agreement:
(i) “
Applicable Time
” means 3:58
p.m. (New York City time) on August 4, 2016;
(ii) “
Effective Date
” means any date as of
which a part of the registration statement relating to the Notes became, or is deemed to have become, effective in accordance with the requirements of the Securities Act and the rules and regulations thereunder;
(iii) “
Issuer Free Writing Prospectus
” means each “issuer free writing
prospectus” (as defined in Rule 433 under the Securities Act);
(iv)
“
Preliminary Prospectus
” means any preliminary prospectus relating to the Notes included in any Registration Statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act, including any preliminary
prospectus supplement thereto relating to the Notes;
(v) “
Pricing Disclosure
Package
” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company at or before the Applicable Time, other than an electronic road show that
is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;
(vi) “
Prospectus
” means the final prospectus relating to the Notes, including any
prospectus supplement thereto relating to the Notes, as filed with the Commission pursuant to Rule 424(b) under the Securities Act;
(vii) “
Registration Statement
” means, collectively, the various parts of the registration
statement (File No. 333-206891), each as amended as of the Effective Date for such part, including any prospectus included therein, the Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and including the
information deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement as of the applicable Effective Date; and
(viii) “
Marketing Materials
” means any Issuer Free Writing Prospectus other than any
Issuer Free Writing Prospectus specified in Schedule III hereto, and including but not limited to any electronic roadshow slides and any accompanying audio recording used in connection with the marketing of the Notes.
Any reference to any prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated
by reference therein pursuant to Form F-3 under the Securities Act as of the date of such prospectus, Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “
most recent Preliminary Prospectus
”
shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference to any amendment or supplement to any
prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities
2
Exchange Act of 1934, as amended (the “
Exchange Act
”), after the date of such prospectus, Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such prospectus, Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any document filed with the Commission pursuant
to Section 13(a), 14 or 15(d) of the Exchange Act after the applicable Effective Date that is incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and, to the Company’s knowledge, no proceeding or examination for such purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering of the Notes has been instituted or threatened by the Commission. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment
thereto.
(b)
Status as
“
Well-Known Seasoned Issuer.
” At the time of initial filing of the
Registration Statement, the Company was, and at the date hereof, the Company is, a
“well-known
seasoned issuer” (as defined in Rule 405 of the Securities Act) eligible to use Form F-3. The
Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) at the earliest time after the time of initial filing of the Registration Statement that the Company or another offering participant makes a
bona
fide
offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Notes. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and was filed not earlier than the date
that is three years prior to the Closing Date (as defined below).
(c)
Registration Statement Conforms to Requirements of
Securities Act and Exchange Act
. The Registration Statement conformed and will conform in all material respects on the applicable Effective Date and on the Closing Date, and any amendment to the Registration Statement filed after the date hereof
will conform in all material respects when filed, to the requirements of the Securities Act and the rules and regulations thereunder. The Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the
Commission pursuant to Rule 424(b) under the Securities Act and on the Closing Date to the requirements of the Securities Act and the rules and regulations thereunder. The documents incorporated by reference in any prospectus, Preliminary Prospectus
or the Prospectus conformed, and any subsequent documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d)
No Omissions or Material Misstatements in Registration Statement
. The
Registration Statement did not, as of the applicable Effective Date, 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;
provided
that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) of this Agreement.
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(e)
No Omissions or Material Misstatements in Prospectus
. The Prospectus will not,
as of its date or as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) of this Agreement.
(f)
No Omissions or Material Misstatements in Incorporated Documents
. The documents incorporated by reference in the
Registration Statement, any prospectus, the Preliminary Prospectus or the Prospectus did not, and any subsequent documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g)
No Omissions or Material Misstatements in Pricing Disclosure Package
. The Pricing Disclosure Package did not, as of the
Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no
representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section 8(e) of this Agreement.
(h)
No Omissions or Material Misstatements in Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus listed in Schedule II hereto, when taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, contain
an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is
made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule II hereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) of this Agreement.
(i)
Issuer Free Writing Prospectus Conforms to Requirements of Securities Act
. Each Issuer Free Writing Prospectus conformed or
will conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder on the date of first use, and the Company has complied with all prospectus delivery and any filing requirements applicable to
such Issuer Free Writing Prospectus pursuant to the Securities Act and rules and regulations thereunder. The Company has not made any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus, except (i) as set forth,
and substantially in the form set forth, on Schedule III hereto or (ii) that which the Representatives have been provided the opportunity to review and to which the Representatives do not reasonably object. The Company has retained in
accordance with the Securities Act and the rules and regulations thereunder all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act and the rules and regulations thereunder.
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(j)
Good Standing
. The Company and each of its significant subsidiaries, as defined
in Rule 1-02(w) of Regulation S-X under the Securities Act (such subsidiaries, “Significant Subsidiaries”) have been duly incorporated or formed, as applicable, and are validly existing under the laws of their respective jurisdictions of
organization and are duly qualified to do business in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect (as hereinafter defined). Each of the Company and its Significant Subsidiaries is in good standing under the laws of its jurisdiction of
organization and is in good standing (where such concept is applicable) in each jurisdiction in which its respective ownership or lease of property or the conduct of its respective businesses requires such qualification. The Company and each of its
Significant Subsidiaries have all corporate or other power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(k)
Subsidiaries.
All of the issued and outstanding shares of capital stock or other equity interests of each Significant Subsidiary of the Company have been duly authorized and validly issued and are fully paid and nonassessable (if applicable);
and the shares of capital stock or other equity interests of each Significant Subsidiary owned by the Company, directly or through subsidiaries, are owned free from liens, encumbrances and defects, except as described in the Pricing Disclosure
Package and the Prospectus or except as would not be material to the Company and its subsidiaries, taken as a whole.
(l)
Indenture.
The Indenture has been duly authorized by the Company; the Notes have been duly authorized by the Company; and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, such Notes will have been duly
executed, authenticated, issued and delivered, will conform to the description thereof contained in the Pricing Disclosure Package and the Prospectus, and the Indenture, when duly executed and delivered by each of the parties thereto, and such Notes
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 be entitled to the benefits provided by the Indenture. On the Closing Date, the Indenture will have been duly qualified under the Trust Indenture Act of 1939 (the
“
Trust Indenture Act
”). The Indenture will also conform to the description thereof in each of the Pricing Disclosure Package and the Prospectus.
(m)
Foreign Issuer
. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
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(n)
No Registration Rights.
No person has the right to require the Company to
register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Notes by the Company.
(o)
Absence of Further Requirements.
No consent, approval, authorization or order of, or filing or registration with, any
governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and the Indenture in connection with the offering, issuance and sale of the Notes by the Company, except such as have been
obtained under or is made pursuant to the Securities Act and the Trust Indenture Act and such as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”), the blue sky laws of any U.S. jurisdiction or the laws of any
non-U.S. jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters in the manner contemplated herein and in the Pricing Disclosure Package and the Prospectus.
(p)
Absence of Defaults and Conflicts Resulting from Transaction.
The execution, delivery and performance of the Indenture and
this Agreement and the issuance and sale of the Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event
(as hereinafter defined) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Significant Subsidiaries pursuant to, (i) the charter or by-laws (or similar organizational
documents) of the Company or its Significant Subsidiaries or (ii) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, applicable to the Company or its Significant Subsidiaries or any of
their properties, or (iii) any agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the properties of the
Company or its Significant Subsidiaries is subject, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or impair the ability of the Company to consummate the transactions contemplated
hereby; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or its Significant Subsidiaries.
(q)
Absence of Existing Defaults and Conflicts.
None of the Company and its Significant Subsidiaries is in violation of its
respective articles of association or by-laws (or similar organizational documents) or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not,
individually or in the aggregate, reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole
(“
Material Adverse Effect
”).
(r)
Authorization of Agreement.
This Agreement has been
duly authorized, executed and delivered by the Company.
6
(s)
Possession of Licenses and Permits.
The Company and its Significant
Subsidiaries possess such valid certificates, authorizations, or permits (collectively, “
Licenses
”) necessary and material to the conduct of the business as described in the Pricing Disclosure Package and the
Prospectus to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if reasonably likely to be determined adversely to the Company or its Significant Subsidiaries would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t)
Absence of Labor
Dispute.
No labor dispute with the employees of the Company or its Significant Subsidiaries exists or, to the knowledge of the Company, is imminent that would reasonably be expected to have a Material Adverse Effect.
(u)
Possession of Intellectual Property.
The Company and its Significant Subsidiaries have adequate rights to use all material
trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information, domain names, trade secrets and other intellectual property (collectively, “
material intellectual property
rights
”) necessary to conduct the businesses in which they are engaged, and have not received any notice of infringement with respect to any material intellectual property rights that would reasonably be expected to have a
Material Adverse Effect.
(v)
Environmental Laws.
Except as disclosed in the Pricing Disclosure Package and the
Prospectus and to the knowledge of the Company, (a)(i) neither the Company nor any of its Significant Subsidiaries is in violation of, or has any liability under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance,
code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling, transportation, treatment, storage,
discharge, disposal or release of Hazardous Substances (as hereinafter defined), to the protection or restoration of the environment or natural resources (including biota), to health and safety including as such relates to exposure to Hazardous
Substances, and to natural resource damages (collectively, “
Environmental Laws
”), (ii) neither the Company nor any of its Significant Subsidiaries is conducting or funding any investigation, remediation,
remedial action or monitoring of actual or suspected Hazardous Substances in the environment, (ii) neither the Company nor any of its Significant Subsidiaries is liable for any release or threatened release of Hazardous Substances, including at
any off-site treatment, storage or disposal site, (iv) neither the Company nor any of its Significant Subsidiaries is subject to any filed claim by any governmental agency or governmental body or person relating to Environmental Laws or
Hazardous Substances, and (v) the Company and its Significant Subsidiaries have received and are in compliance with all, and have no liability under any, permits, licenses, authorizations, identification numbers or other approvals required
under applicable Environmental Laws to conduct their respective businesses, except in each case covered by clauses (i) – (v) such as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
and (b) to the knowledge of the Company there are no facts or circumstances that would reasonably be expected to result in a violation of, liability under or claim pursuant to any Environmental Law that would reasonably be expected to have a
Material Adverse Effect. For purposes of this subsection “Hazardous Substances” means (A) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and mold, and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or waste under Environmental Laws.
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(w)
Accurate Disclosure.
The statements in the Pricing Disclosure Package and the
Prospectus under the headings “Material Tax Considerations,” “Description of the Notes,” and “Underwriting,” insofar as such statements summarize the laws, agreements and documents discussed therein, fairly and
accurately present in all material respects the laws, agreements and documents discussed therein.
(x)
Absence of
Manipulation.
None of the Company or any of its controlled affiliates has taken, either alone or with one or more other persons, directly or indirectly, any action that has constituted, that was designed to cause or result in or that could
reasonably be expected to cause or result in the stabilization or manipulation of the price of the Notes, it being understood that any action of the Underwriters and their affiliates shall not constitute an indirect action by the Company.
(y)
Statistical and Market Related Data.
Any third party statistical and market-related data included or incorporated
by reference in the Registration Statement, Pricing Disclosure Package, the Prospectus, or any Issuer Free Writing Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.
(z)
Independent Auditors.
Ernst & Young LLP, who has certified certain financial statements of the Company
incorporated by reference in the Pricing Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the applicable rules and regulations adopted
by the Commission and the Public Company Accounting Oversight Board.
(aa)
Internal Controls.
The Company maintains
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) under the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, its principal
executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles in the United States. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the generally accepted accounting principles in the United States and to maintain
accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(bb)
Disclosure Controls
. (i) The Company
maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in the
reports it files or submits under the Exchange Act is recorded,
8
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and that such information is accumulated and communicated to management of the
Company, including the Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; and (iii) such disclosure controls and procedures are effective in all material respects to
perform the functions for which they were established.
(cc)
Taxes.
The Company and its Significant Subsidiaries have filed
all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect); and,
except as set forth in the Pricing Disclosure Package and the Prospectus, (i) the Company and its Significant Subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such
taxes, assessments, fines or penalties currently being contested in good faith or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd)
Litigation.
Except as disclosed in the Pricing Disclosure Package and the Prospectus, there are no pending actions, suits
or proceedings against or affecting the Company, any of its Significant Subsidiaries or any of their respective properties that are reasonably likely to be determined adversely to the Company or any of its Significant Subsidiaries and would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are,
to the Company’s knowledge, threatened in writing.
(ee)
Financial Statements of the Company.
The financial
statements of the Company included or incorporated by reference in the Pricing Disclosure Package and the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as disclosed in the Pricing Disclosure Package and the Prospectus, such financial statements have been prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all
material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ff)
Compliance with ERISA and Other Pension Laws
. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the
“
Code
”), without regard to Code section 1563(b)(2)2 (C)) would have any liability (each, a “
Plan
”) but excluding any multiemployer plan (as defined in Section 4001(a)(3) of ERISA (“Multiemployer
Plan”), to the best of the Company’s knowledge, has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan (excluding any
9
Multiemployer Plan) excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan (excluding any Multiemployer Plan) that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or
Section 412 of the Code) applicable to such Plan; (iv) no Plan other than the Distributors Association Warehousemen’s Pension Trust is in “at risk status” (within the meaning of Section 303(i) of ERISA) or
“endangered status” or “critical status” (within the meaning of Section 305 of ERISA); (v) the fair market value of the assets of each Plan (excluding any Multiemployer Plan) exceeds the present value of all benefits
accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; (vii) each
Plan (excluding any Multiemployer Plan) that is intended to be qualified under Section 401(a) of the Code, to the best of the Company’s knowledge, is so qualified and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification and (viii) to the best of the Company’s knowledge neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation, in the ordinary course and without default) in respect of a Plan (including a Multiemployer Plan), except in each case with respect to the events or
conditions set forth in (i) through (viii) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the Pricing Disclosure Package and the Prospectus, all employee benefit plans (within
the meaning of ERISA) (whether or not subject to ERISA) and all pension plans subject to the laws of any jurisdiction outside the United States, established or maintained by the Company, its subsidiaries, or for which the Company or its subsidiaries
could have any liability (excluding any Multiemployer Plan), are in compliance with all applicable statutes, orders, rule and regulations and other law, except for any violations that, individually or in the aggregate, would not be reasonably likely
to result in material liability to the Company and its subsidiaries taken as a whole. All such plans (excluding any Multiemployer Plan) (i) have been maintained in accordance with all applicable requirements, (ii) if they are intended to
qualify for special tax treatment, meet all the requirements for such treatment and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial
assumptions, except in each case as would not, individually or in the aggregate, result in a Material Adverse Effect.
(gg)
No
Material Adverse Change in Business.
Except as disclosed in the Registration Statement, Pricing Disclosure Package or Prospectus, since the end of the period covered by the latest audited financial statements included or incorporated by
reference in the Registration Statement, Pricing Disclosure Package or Prospectus (i) there has been no change, nor any development or event involving a prospective change, that would reasonably be expected to have a Material Adverse Effect;
(ii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) there has been no change in the capital stock or other equity interests, short-term indebtedness,
long-term indebtedness, net current assets or net assets of the Company and the Company’s Significant Subsidiaries that would reasonably be expected to have a Material Adverse Effect.
(hh)
Investment Company Act.
The Company is not and, after giving effect to the offering and sale of the Notes and the
application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be an “investment company” required to register under the Investment Company Act of 1940, as amended.
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(ii)
Regulations T, U, X.
The application of the proceeds received by the Company
from the issuance and sale of the Notes will not violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(jj)
No Prohibition on Dividends by Significant Subsidiaries.
Except as disclosed in the Pricing Disclosure Package and the
Prospectus, no wholly owned Significant Subsidiary of the Company (other than any Securitization Entity (as defined in the officers’ certificate establishing the terms of the Notes pursuant to the Indenture)) is currently prohibited under any
agreement or other instrument to which it is a party or is subject, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Significant Subsidiary’s capital stock, membership interests or
other equity interests, from repaying to the Company any loans or advances to such Significant Subsidiary from the Company or from transferring any of such Significant Subsidiary’s property or assets to the Company or any other subsidiary of
the Company.
(kk)
No Unlawful Payments.
Neither the Company nor any of its subsidiaries nor any director or officer of the
Company or any of its subsidiaries nor, to the knowledge of the Company, any employee 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 or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any
government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office;
(iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (“
FCPA
”), or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an
act in furtherance of any unlawful bribe or other unlawful benefit. The Company and its subsidiaries have instituted, maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and
anti-corruption laws. The Company will not directly or indirectly use the proceeds of the offering of the Notes in violation of the FCPA or any other applicable anti-corruption law.
(ll)
No Conflicts with Sanctions Laws
. Neither the Company nor any of its subsidiaries nor any director or officer of the Company or
any of its subsidiaries nor, to the knowledge of the Company, any employee of the Company or any of its subsidiaries, is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without
limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“
OFAC
”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated
national” or “blocked person”), the United Nations Security Council (“
UNSC
”), the European Union or Her Majesty’s Treasury (“
HMT
”) (collectively,
“
Sanctions
”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions including, without limitation, Cuba, Iran, North Korea, Sudan,
Syria
11
and the Crimea region of Ukraine (each, a “
Sanctioned Area
”); and the Company will not directly or, knowingly, indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of
such funding or facilitation, is the subject or target of Sanctions or (ii) to fund or facilitate any activities of or business in any Sanctioned Area.
(mm)
Compliance with Anti-Money Laundering Laws.
The operations of the Company and its subsidiaries are and have been conducted at all
times in all material respects in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of
all jurisdictions where the Company or any of its subsidiaries conducts 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 “
Anti-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 Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened in writing.
(nn)
Insurance
.
The Company and its Significant Subsidiaries have insurance coverage in respect of their assets, properties and businesses that complies with the insurance policies and standards of the Company related to the assets, properties and businesses of, as
applicable, the Company and its Significant Subsidiaries.
(oo)
Distribution of offering materials
. The Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the distribution of the Notes, will not distribute any offering materials in connection with the offering and sale of the Notes other than (i) any Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and any Issuer Free Writing Prospectus set forth on Schedule III hereto or (ii) those which the Representatives have been provided the opportunity to
review and to which the Representatives do not reasonably object in accordance with Section 5(a)(vi) or 5(a)(vii).
(pp)
Stamp Duty
. There are no stamp or other issuance, registration, documentary or transfer taxes or duties or other similar fees or charges required to be paid by the Company or by or on behalf of the Underwriters in the United Kingdom, the
Netherlands, Italy or the United States (each a “Relevant Taxing Jurisdiction”) in connection with (A) the creation, issue or delivery by the Company of the Notes, (B) the execution, delivery and performance of this Agreement,
the Indenture or the Prospectus, (C) the issuance, sale or delivery of the Notes by the Company to the Underwriters in the manner contemplated by this Agreement and the Prospectus or (D) the sale and delivery by the Underwriters of the
Notes as contemplated herein and in the Prospectus, other than Italian registration tax arising if this Agreement, the Indenture or any agreement for the sale of the Notes or any transfer of the Notes by the Underwriters is (i) filed with an
Italian court or with an Italian administrative authority, (ii) referred to in another document executed between the same parties and subject to registration or in a judicial decision (including arbitration), (iii) voluntarily registered
or (iv) executed in Italy.
12
(qq)
No Tax on Income or Gains
. Except for any net income, capital gains or
franchise taxes imposed on an Underwriter as a result of any present or former connection (other than any connection resulting solely from the transactions contemplated by this Agreement or the Indenture) between the relevant Underwriter and the
jurisdiction imposing the tax, all payments to be made by or on behalf of the Company on or by virtue of the execution, delivery, performance or enforcement of this Agreement or the Indenture and, except as disclosed in the Pricing Disclosure
Package and the Prospectus, all interest, principal, premium, if any, additional amounts, if any, and other payments on or under the Notes will not be subject to withholding or other taxes on income or gains under the current laws and regulations of
any Relevant Taxing Jurisdiction and are otherwise payable free and clear of any other tax on, or withholding or deduction from, income or gains in any Relevant Taxing Jurisdiction and without the necessity of obtaining any governmental
authorization in any Relevant Taxing Jurisdiction.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Company as to matters covered thereby, to each Underwriter.
2.
Purchase of the Notes by the Underwriters.
The Company hereby agrees, on the basis of the representations, warranties, covenants and
agreements of the Underwriters contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Underwriters and, upon the basis of the representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the Underwriters agree, severally and not jointly, to purchase from the Company, at a purchase price of 99.15% of the principal amount thereof, plus accrued interest from the Closing Date
to the date of payment, if any, the principal amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto. The Company shall not be obligated to deliver any of the Notes to be delivered hereunder except upon payment for all
of the Notes to be purchased as provided herein.
3.
Offering of Notes by the Underwriters
. Upon authorization by the
Representatives of the release of the Notes, the several Underwriters propose to offer the Notes for sale upon the terms and conditions to be set forth in the Prospectus.
4.
Delivery of the Notes and Payment Therefor
. Delivery to the Underwriters of and payment for the Notes shall be made at the
office of Sullivan & Cromwell LLP, 125 Broad Street, New York, NY 10004 at 10:00 A.M., New York City time, on August 18, 2016, or at such other time as the Representatives and the Company determine, such time being herein referred to
as the “
Closing Date
”. The place of closing for the Notes and the Closing Date may be varied by agreement between the Underwriters and the Company.
The Notes will be delivered to the Underwriters, or the Trustee as custodian for The Depository Trust Company (“
DTC
”),
against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer in immediately available funds to the order of the Company, by causing DTC to credit the Notes to the account of the Underwriters at DTC. The Notes
will be evidenced by one or more global securities in definitive form (the “
Global Notes
”) and will be registered in the name of Cede & Co. as nominee of DTC.
13
5.
Further Agreements of the Company and the Underwriters
. (a) The Company agrees:
(i) To prepare the Prospectus 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 this Agreement; to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the Closing Date which amendment or supplement is not approved by the Representatives promptly after reasonable notice thereof (which approval shall not be unreasonably withheld, conditioned or delayed) or except as provided
herein; to advise the Representatives promptly of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, of the suspension
of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or any notice from the
Commission objecting to the use of the form of Registration Statement or any
post-effective
supplement thereto or of any request by the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus or suspending any such qualification, to obtain as reasonably possible its withdrawal.
(ii) To furnish promptly
to the Representatives, upon their reasonable request in writing to the Company, a copy of a manually executed version of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(iii) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, and (D) any document incorporated by reference
in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Notes or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the 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 is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the Exchange
14
Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer for the Notes as many copies as
the Representatives may from time to time reasonably request of any such amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the
Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to Section 5(a)(i)
above, furnish to the Underwriters such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the
Pricing Disclosure Package as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Pricing
Disclosure Package will comply with law.
(v) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission.
(vi) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus, any
document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and not to make such filing if the
Representatives reasonably object.
(vii) Not to make any offer relating to the Notes that would constitute an Issuer Free
Writing Prospectus other than those which the Representatives have been provided the opportunity to review and to which the Representatives do not reasonably object.
(viii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing
Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus or 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, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus to comply with the requirements of the Securities Act and the rules and regulations thereunder, to notify the
Representatives and, upon their request, to file such document and to prepare and furnish
15
without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct
such conflict, statement or omission or effect such compliance.
(ix) As soon as practicable after the date hereof (it
being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the date hereof is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the
Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to the Representatives 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 thereunder (including, at the option of the Company, Rule 158).
(x) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Notes for
offering and sale under the securities or Blue Sky laws of such 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 the Notes;
provided
that in connection therewith the Company shall not be required to (A) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so
qualify, (B) file a general consent to service of process in any such jurisdiction, or (C) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(xi) To apply the net proceeds from the sale of the Notes being sold by the Company substantially in accordance with the
description as set forth in the Prospectus under the caption “Use of Proceeds.”
(xii) To file with the
Commission such information as may be required by Rule 463 under the Securities Act.
(xiii) The Company and its controlled
affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection
with the offering of the Notes, it being understood that any action of any of the Underwriters or their affiliates shall not constitute an indirect action by the Company.
(xiv) For a period commencing on the date hereof and ending on the earlier of (x) the termination of this Agreement or
(y) the 60th day after the date of the Prospectus, the Company agrees not to, directly or indirectly, except in connection with an Exempt Transaction (as defined below), (i) offer for sale, sell, or otherwise dispose of (or enter into any
transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any Lock-Up Securities (as hereinafter defined), or sell or grant options, rights or warrants with respect to
Lock-Up Securities, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Lock-Up
16
Securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or other securities, in cash or otherwise,
(iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of Lock-Up Securities, or (iv) publicly announce an offering of any Lock-Up Securities, in each case in the United States
and without the prior written consent of the Representatives on behalf of the Underwriters. “
Exempt Transaction
” means the issuance and sale of a debt security in reliance on Section 4(a)(2) of the Securities Act and
such debt security is not sold in a capital markets transaction (including, without limitation any capital markets transaction made in reliance on Rule 144A or Regulation S, in each case, under the Securities Act). “
Lock-Up
Securities
” means debt securities issued or guaranteed by the Company substantially similar to the Notes (in any event having a maturity of more than one year from the date of issue) or securities convertible into or exchangeable or
exercisable for any such debt securities of the Company. For the avoidance of doubt, nothing in this Section 5(a)(xiv) shall restrict (1) the Company or any of its subsidiaries from issuing debt securities (including guarantees thereof)
under the Company’s Global Medium-Term Note Program or (2) CNH Industrial Capital LLC or any of its subsidiaries from issuing debt securities (including guarantees thereof).
(xv) The Company will use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through
DTC.
(xvi) The Company agrees to comply with all agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Notes by DTC for “book-entry” transfer.
(xvii) The Company will indemnify and
hold harmless the Underwriters against any documentary, stamp, registration, transfer or similar issuance tax, including any interest and penalties, on the creation, issuance, sale and delivery of the Notes by the Company to the Underwriters, on the
initial resale and delivery thereof by the Underwriters as envisaged in the Prospectus and on the execution and delivery of this Agreement or the Indenture, other than Italian registration tax arising as a result of an Underwriter’s
registration of this Agreement or the Indenture in Italy where the registration is not required to enforce the Underwriter’s rights hereunder or thereunder.
(xviii) All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, levies, imposts, duties or governmental charges or any other deductions or withholdings whatsoever levied in a Relevant Taxing Jurisdiction, unless the Company is compelled by law to deduct or withhold such taxes,
levies, imposts, duties or charges. In that event, and except for any net income, capital gains or franchise taxes imposed on an Underwriter as a result of any present or former connection (other than any connection resulting solely from the
transaction contemplated by this Agreement or the Indenture) between the Underwriter and the jurisdiction imposing that withholding or deduction, the Company shall pay such additional amounts as may be necessary in order to ensure that the net
amounts received by the Underwriters after such withholding or deductions shall equal the amounts that would have been received if no withholding or deduction has been made, including any deductions and withholdings attributable to additional
amounts payable under this Agreement.
17
(xix) All payments made by the Company under this Agreement shall be exclusive of
any value added tax or any other tax of a similar nature (“
VAT
”) which is chargeable thereon and if any VAT is or becomes chargeable in respect of any such payment, the Company shall pay in addition the amount of such VAT (at
the same time and in the same manner as the payment to which such VAT relates). For the avoidance of doubt, all amounts charged by the Underwriters or for which the Underwriters are to be reimbursed will be reimbursed together with an amount equal
to any irrecoverable VAT payable in relation to the cost, fee, expense or other amount to which the reimbursement relates including, for the avoidance of doubt, any VAT on services provided from legal counsel where an Underwriter is required to
self-assess and account for VAT in its role as the recipient of such services.
(b) Each Underwriter severally agrees that:
(i) Such Underwriter shall not include any “issuer information” (as defined in Rule 433(h)(2) under the Securities
Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has
given its consent, “
Permitted Issuer Information
”);
provided
that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the
Commission prior to the use of such free writing prospectus, including any Preliminary Prospectus or the Prospectus, and (ii) “issuer information,” (as used in this Section 5(b)), shall not be deemed to include information
prepared by or on behalf of such Underwriter on the basis of or derived from issuer information. The Company shall not be responsible to any Underwriter for liability arising from any inaccuracy in such free writing prospectus referred to in clause
(i) or that does not contain any “issuer information” as compared with the information in the Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package.
6.
Expenses
. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the
Company agrees to pay all expenses, costs, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the Notes and any stamp duties or other taxes payable in that connection, and the preparation of
certificates for the Notes; (b) the preparation and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment
or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, or any document
incorporated by reference therein, all as provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental agreement among Underwriters, and any other related documents in connection with the offering,
purchase, sale and delivery of the Notes (excluding any fees and disbursements of counsel to the Underwriters relating thereto); (e) the qualification of the Notes under the securities laws of the
18
several jurisdictions as provided in Section 5(a)(x) and the preparation and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters in an
amount that is not greater than $5,000); (f) if applicable, the preparation and distribution of one or more versions of the Preliminary Prospectus and the Prospectus for distribution in Canada (excluding related fees and expenses of Canadian
counsel to the Underwriters); (g) the approval of the Notes by DTC for “book-entry” transfer (excluding any fees and disbursements of counsel to the Underwriters relating thereto); (h) the rating of the Notes; (i) the
obligations of the Trustee, any agent of the Trustee and the counsel for the Trustee in connection with the Indenture and the Notes; (j) the investor presentations on any “road show” undertaken in connection with the marketing of the
Notes, including, without limitation, costs and expenses of the Underwriters (to the extent incurred by them) and the Company’s officers and employees, in each case in connection with such road show; and (k) all other reasonable and
documented costs and expenses (other than (x) printing costs and expenses and (y) any fees and disbursements of counsel except as provided in clause (e) of this Section 6) incident to the performance of the obligations of the
Company.
7.
Conditions of Underwriters’ Obligations
. The respective obligations of the Underwriters hereunder are
subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i). The
Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose or pursuant to Section 8A of the Securities Act shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with. The Commission has not notified the Company of any objection to the use of the form
of the Registration Statement or any post-effective amendment thereto.
(b) (i) Sullivan & Cromwell LLP shall have furnished to
the Representatives its written opinion and letter, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, substantially in the forms attached hereto as Exhibit A and (ii) Freshfields Bruckhaus Deringer LLP shall
have furnished to the Representatives its written opinion, as Dutch counsel to the Company, addressed to the Underwriters and dated the Closing Date, substantially in the form attached hereto as Exhibit B.
(c) The Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Notes, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
19
(d) At the time of execution of this Agreement, the Representatives shall have received from
Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation
S-X
of the Commission, and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three business days
prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public
offerings.
(e) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and
delivered to the Representatives concurrently with the execution of this Agreement (the “
initial letter
”), the Company shall have furnished to the Representatives a letter (the “
bring-down letter
”) of
such accountants, addressed to the Underwriters and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other
matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(f) The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of the Chief Financial Officer and
Treasurer of the Company in such capacities as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in Section 1 are true and correct in all material
respect on and as of the Closing Date, and that the Company has complied in all material respect with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no
proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any
post-effective amendment thereto; and
(iii) To the effect of Section 7(g) (
provided
that no
representation with respect to the judgment of the Representatives need be made).
20
(g) No event or condition of a type described in Section 1(gg) hereof shall have occurred or
shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable
judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the Closing Date, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and
the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities or preferred stock by Moody’s Investors Service, Inc. or Standard & Poor’s, a division of The McGraw Hill Companies, Inc., and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or materially limited by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities shall have been declared by British, U.S. federal or New
York state authorities, or (iv) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, as to make it, in the case of
clause (iv) in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the public offering, sale or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in
the Prospectus.
(j) The Notes shall be eligible for clearance and settlement through DTC.
(k) The officers’ certificate or supplemental indenture establishing the terms of the Notes shall have been executed and delivered by the
Company (and, in the case of the supplemental indenture, the Trustee) and the Underwriters shall have received a copy of a manually executed version thereof.
(l) On or prior to the Closing Date, the Company shall have furnished to the Underwriters such further certificates and documents as the
Representatives may reasonably request.
8.
Indemnification and Contribution.
(a) The Company hereby agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Notes), to which that Underwriter, affiliate, director,
21
officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing
Prospectus or in any amendment or supplement thereto (including, without limitation, any Marketing Materials), (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) used or referred to by any Underwriter, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Permitted Issuer Information or any Marketing Materials, any material fact required to be stated therein or necessary to make the statements therein not misleading , and shall reimburse each Underwriter and each such
affiliate, director, officer, employee or controlling person for any legal or other expenses reasonably incurred by that Underwriter, affiliate, director, officer, employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred;
provided
,
however
, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any such amendment or supplement thereto or in any Permitted Issuer Information or any Marketing Materials, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any affiliate, director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and its directors, officers and employees and
each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Marketing Materials, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing
Materials, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the
information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Company or any such director, officer, employee or controlling person
22
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement
of that action;
provided
,
however
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under paragraph (a) or (b) above except to the extent it has been materially
prejudiced (through the forfeiture of substantive rights and defenses) by such failure and,
provided
,
further
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under paragraph (a) or (b) above. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of investigation;
provided, however
, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those
other indemnified parties and their respective directors, officers, employees and controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, who may be subject to liability arising out of any claim in respect
of which indemnity may be sought under this Section 8 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, shall have reasonably concluded
that there may be legal defenses available to them 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
indemnified parties or their respective directors, officers, employees or controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, on the one hand, and the indemnifying party, on the other hand, and
representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying
party. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a
23
final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to
or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, 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 loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from the offering of the Notes, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with
respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the table on the cover
page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the Notes purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on
the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative 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
contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), 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 Section 8(d), in no
event shall an Underwriter be required to contribute any amount in excess of the amount by which the total price at which the Notes purchased by it were resold exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges and agrees that (i) the Underwriters’ names set forth on the
front and back cover pages of, (ii) the
24
statements regarding delivery of Notes by the Underwriters set forth on the front cover page of, and (iii)(A) the Underwriters’ names in the first table, (B) the third paragraph of
text, (C) the third sentence of the seventh paragraph of text and (D) the eighth paragraph of text appearing in each case of (A) through (D) under the caption “Underwriting” in, the Pricing Disclosure Package and the
Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials.
9.
Defaulting Underwriters
.
(a) If, on the Closing Date, any Underwriter defaults in its obligations to purchase the Notes
that it has agreed to purchase under this Agreement, the remaining non-defaulting Underwriters may in their discretion arrange for the purchase of such Notes by the non-defaulting Underwriters or other persons satisfactory to the Company on the
terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the
non-defaulting
Underwriters do not arrange for the purchase of such Notes, then the Company shall be
entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Notes on such terms. In the event that within the respective prescribed periods, the non-defaulting
Underwriters notify the Company that they have so arranged for the purchase of such Notes, or the Company notifies the non-defaulting Underwriters that it has so arranged for the purchase of such Notes, either the non-defaulting Underwriters or the
Company may postpone the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Prospectus or in any such other document or arrangement that effects any such changes. As used in this
Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I hereto that, pursuant to this Section 9, purchases Notes that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Notes, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder plus such Underwriter’s
pro
rata
share (based on the principal amount of Notes that such Underwriter agreed to purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made;
provided
that the
non-defaulting Underwriters shall not be obligated to purchase more than 110% of the aggregate principal of Notes that it agreed to purchase on the Closing Date pursuant to the terms of Section 4.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as
25
provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall
be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Sections 6 and 11 and except that the provisions of Section 8 shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any
non-defaulting Underwriter for damages caused by its default.
10.
Termination.
The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and received by the Company prior to delivery of and payment for the Notes if, prior to that time, any of the events described in Sections 7(g), 7(h) and 7(i) shall have occurred
or if the Underwriters shall decline to purchase the Notes for any reason permitted under this Agreement.
11.
Reimbursement of Underwriters’ Expenses.
If (a) the Company shall fail to tender the Notes for delivery to the Underwriters for any reason, or (b) the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement (other than pursuant to a termination of this Agreement due to the occurrence of any of the events described in Section 7(i) (other than Section 7(i)(ii) where there has been no general suspension or material
limitation on trading described in Section 7(i)(i))), the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel for the Underwriters) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Notes, and upon demand the Company shall pay the full amount thereof to the Representatives. If this Agreement is terminated pursuant to Section 9 by reason of the default of one
or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses.
12.
Research Analyst Independence.
The Company acknowledges that the Underwriters’ research analysts and research
departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from
time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
26
13.
No Fiduciary Duty
. The Company acknowledges and agrees that in connection with
this offering, sale of the Notes or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters: (a) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other, has been created in connection with the purchase,
offering and sale of the Notes; (b) the Underwriters are not acting as advisors, expert or otherwise, to either the Company with respect to the determination of the offering price of the Notes, and such relationship between the Company, on the
one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Underwriters may have to the Company in connection with this Agreement shall be limited
to those duties and obligations specifically stated herein or created by law; and (d) the Underwriters and their respective affiliates may have interests that differ from those of the Company. The Company hereby waives any claims that the
Company may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
14.
Notices, etc.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to J.P. Morgan Securities LLC, 383 Madison Avenue,
New York, NY 10179;
(b) if to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: General Counsel/Legal (Fax: (630) 887-2344), with a copy to Sullivan & Cromwell LLP, 125 Broad Street, New York, NY 10004, Attention: Scott Miller (Fax: 212-558-3588); and
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriters by J.P. Morgan Securities LLC on behalf of the Representatives.
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company and its successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the affiliates, directors, officers and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and (b) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors, officers and employees of the Company and any
person controlling the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in
this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
27
16.
Survival.
The respective indemnities, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Notes and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
17.
Definition of the Terms “Business Day”, “Affiliate” and “Subsidiary”
. For purposes of this Agreement, (a) “
business day
” means each Monday, Tuesday, Wednesday, Thursday
or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close, and (b) “
affiliate
” and
“
subsidiary
” have the meanings set forth in Rule 405 under the Securities Act.
18.
Governing Law & Venue
.
This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles (other than Section 5-1401 of the General Obligations Law).
19.
Judgment Currency.
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder
into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could
purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with respect to any sum due from it to any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter of any sum in such other currency, and only to the extent that such Underwriter may in
accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter hereunder, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the
Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person of such Underwriter hereunder.
20.
Waiver of Immunity
. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from
jurisdiction of any court of (i) The Netherlands, or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or leases property or assets or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Company hereby irrevocably
waives such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.
21.
Submission to Jurisdiction
. The Company and the Underwriters hereby submit to the non-exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this
28
Agreement or the transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The
Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such
judgment. The Company irrevocably appoints CT Corporation System, located at 111 Eighth Avenue, New York, New York 10011, as its authorized agent in the Borough of Manhattan in The City of New York upon which process may be served in any such suit
or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Company by the person serving the same to the address provided in this Section 20, shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding. The Company hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process.
22.
Waiver of Jury Trial
. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
23.
Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
24.
Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
[
Signature Page Follows
]
29
If the foregoing correctly sets forth the agreement among the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
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|
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Very truly yours,
|
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CNH INDUSTRIAL N.V.
|
|
|
|
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By:
|
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/s/ Massimiliano Chiara
|
|
|
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Name:
|
|
Massimiliano Chiara
|
|
|
|
Title:
|
|
Chief Financial Officer
|
[
Signature Page to Underwriting Agreement
]
|
|
|
|
|
Accepted:
|
|
|
|
BNP P
ARIBAS
S
ECURITIES
C
ORP
.
|
|
C
ITIGROUP
G
LOBAL
M
ARKETS
I
NC
.
|
|
D
EUTSCHE
B
ANK
S
ECURITIES
I
NC
.
|
|
J.P. M
ORGAN
S
ECURITIES
LLC
|
|
|
|
For themselves and as Representatives
of the several Underwriters named
in Schedule I
hereto
|
|
|
|
By: BNP P
ARIBAS
S
ECURITIES
C
ORP
.
|
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By:
|
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/s/ B. Campbell Anderson
|
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Authorized Representative
|
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By: C
ITIGROUP
G
LOBAL
M
ARKETS
I
NC
.
|
|
|
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By:
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/s/ Adam D. Bordner
|
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Authorized Representative
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By: D
EUTSCHE
B
ANK
S
ECURITIES
I
NC
.
|
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By:
|
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/s/ Edwin E. Roland
|
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Authorized Representative
|
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By:
|
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/s/ Eunice Kang
|
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Authorized Representative
|
|
|
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By: J.P. M
ORGAN
S
ECURITIES
LLC
|
|
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By:
|
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/s/ Ryan Griswold
|
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Authorized Representative
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[
Signature Page to Underwriting Agreement
]
SCHEDULE I
|
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Underwriters
|
|
Principal
Amount of
Notes
to be
Purchased
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
150,000,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
150,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
150,000,000
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
150,000,000
|
|
|
|
|
|
|
|
|
Total
|
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$
|
600,000,000
|
|
|
|
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|
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SCHEDULE II
ISSUER FREE WRITING PROSPECTUSES – ROAD SHOW MATERIALS
|
1.
|
The electronic roadshow in connection with the offering of the Notes, dated as of the date hereof.
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SCHEDULE III
ISSUER FREE WRITING PROSPECTUS
|
1.
|
Issuer Free Writing Prospectus dated August 4, 2016, filed pursuant to Rule 433 under the Securities Act.
|
[See Attached]
Pricing Term Sheet
CNH INDUSTRIAL N.V.
$600,000,000 4.50% NOTES DUE 2023
|
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|
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Issuer:
|
|
CNH Industrial N.V.
|
|
Principal Amount:
|
|
$600,000,000
|
|
Maturity Date:
|
|
August 15, 2023
|
|
Coupon:
|
|
4.50% per annum
|
|
Price to Public:
|
|
100.00% plus accrued interest from August 18, 2016 if settlement occurs after that date
|
|
Net Proceeds to Issuer Before Expenses:
Yield
to Maturity:
|
|
$594,900,000
4.50%
|
|
Benchmark Treasury:
|
|
UST 1.25% due July 31, 2023
|
|
Spread to Benchmark Treasury:
|
|
+319 basis points
|
|
Interest Payment Dates:
|
|
February 15 and August 15, commencing February 15, 2017
|
|
Optional Redemption:
|
|
Make-whole premium based on U.S. Treasury +50 basis points
|
|
Settlement:
|
|
T+10; August 18, 2016
|
|
CUSIP / ISIN:
|
|
12594K AA0 / US12594KAA07
|
|
Joint Book-Running Managers:
|
|
BNP Paribas Securities Corp.
Citigroup Global
Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan
Securities LLC
|
The issuer has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the SEC
for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send
you the prospectus and the preliminary prospectus supplement if you request them by contacting BNP Paribas Securities Corp., Attention: Syndicate Desk, 787 Seventh Avenue, New York, NY 10019, telephone: (800) 854-5674, E-mail:
new.york.syndicate@bnpparibas.com; Citigroup Global Markets Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, Telephone: (800) 831-9146; E-mail: prospectus@citi.com; Deutsche Bank Securities Inc., 60 Wall
Street, New York, NY 10005, Telephone: (800) 503-4611, E-mail: prospectus.CPDG@db.com; or J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, Telephone: (866) 803-9204.
EXHIBIT A
FORMS OF OPINION AND LETTER OF SULLIVAN & CROMWELL LLP
COMPANY’S U.S. COUNSEL
August 18, 2016
BNP Paribas Securities Corp.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC
As Representatives of the several Underwriters,
c/o J.P. Morgan Securities LLC,
383 Madison Avenue,
New York,
New York 10179.
Ladies and Gentlemen:
In
connection with the several purchases today by you pursuant to the Underwriting Agreement, dated August 4, 2016 (the “Underwriting Agreement”), between CNH Industrial N.V., a public company with limited liability incorporated under
the laws of The Netherlands (the “Company”) and you, as Representatives of the several Underwriters named therein (the “Underwriters”), of $600,000,000 principal amount of the Company’s 4.50% Notes due 2023 (the
“Securities”) issued pursuant to the Indenture, dated as of August 18, 2016 (the “Indenture”), between the Company and U.S. Bank National Association, as Trustee (the “Trustee”), we, as United States counsel for
the Company, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, it is our opinion
that:
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1.
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Assuming the Indenture has been duly authorized, executed and delivered by the Company under Dutch law, the Indenture has been duly executed and delivered by the Company and duly qualified under the Trust Indenture Act
of 1939 and, assuming due authorization, execution and delivery of the Indenture by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its 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.
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2.
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Assuming the Securities have been duly authorized, executed, issued and delivered under Dutch law, the Securities have been duly executed, authenticated, issued and delivered by the Company and constitute valid and
legally binding obligations of the Company enforceable against the Company 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.
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3.
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All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Covered Laws for the issuance, sale and delivery of the Securities by the Company to you, and the
performance by the Company of its obligations thereunder, have been obtained or made.
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4.
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The issuance of the Securities in accordance with the Indenture and the sale of the Securities by the Company to you pursuant to the Underwriting Agreement do not, and the performance by the Company of its obligations
under the Indenture, the Underwriting Agreement and the Securities will not, (i) result in a default under or breach or violation of, or imposition of any lien or encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to the terms of, any of the agreements listed in Annex I to this opinion;
provided
,
however
, that we are expressing no opinion in this clause (i) as to compliance with any financial or accounting test, or any limitation
or restriction expressed as a dollar amount, ratio or percentage, or (ii) violate any Covered Laws.
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5.
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Assuming due authorization, execution and delivery of the Underwriting Agreement by the Company under Dutch law, the Underwriting Agreement has been duly executed and delivered by the Company.
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6.
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The Registration Statement (as defined in the Underwriting Agreement) has become effective under the Securities Act of 1933, as amended, and, based solely on our review of the “Stop Orders” web page
(https://www.sec.gov/litigation/stoporders.shtml) maintained by the Securities and Exchange Commission, no stop order suspending its effectiveness has been issued.
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7.
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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 Basic Prospectus, as supplemented by the Prospectus Supplement,
dated August 4, 2016, would not be, on the date hereof, an “investment company” as defined in the Investment Company Act of 1940.
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8.
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Under the laws of the State of New York relating to submission to personal jurisdiction, the Company has, pursuant to Section 21 of the Underwriting Agreement, validly submitted to the non-exclusive personal
jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York, in any action arising out of or relating to the Underwriting Agreement or the transactions contemplated thereby.
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As contemplated by the qualifications set forth in paragraphs (1) and (2) above, in rendering the foregoing opinions, we are
expressing no opinion as to Federal or state laws relating to fraudulent transfers. In addition, we are expressing no opinion in paragraphs (3) and (4) above, insofar as performance by the Company of its obligations
under the Indenture, the Underwriting Agreement and the Securities is concerned, as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights. Also, for purposes of the opinions in paragraphs (3) and (4) above, “Covered Laws” means the Federal laws of the United States and the laws of the State of New York
(including the published rules or regulations thereunder) that in our experience normally are applicable to limited liability companies and the issuance, sale and delivery of the Securities;
provided
,
however
, that such term does not
include Federal or state securities laws, other antifraud laws or fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust laws or any law that is applicable to the Company, either Guarantor, the Securities,
the Guarantees or the issuance, sale or delivery thereof solely as part of a regulatory regime applicable to the Company or its affiliates due to its or their status, business or assets.
The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of Dutch law, we note that you have received an opinion, dated the date hereof, of Freshfields Bruckhaus Deringer LLP pursuant to Section 7(b)(ii) of
the Underwriting Agreement.
We have also relied as to certain matters upon information obtained from public officials, officers of the
Company and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities conform to the specimens thereof examined by us, that the
Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s authorized officers, and that the signatures on all documents examined by us are genuine, assumptions which we have not
independently verified.
This letter is furnished by us, as United States counsel to the Company, to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may not be relied upon by any other person. This letter may not be quoted, referred to or furnished to any purchaser or prospective purchaser of the Securities
and may not be used in furtherance of any offer or sale of the Securities
.
Very truly yours,
Annex I
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•
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Terms and Conditions of the Global Medium Term Notes pursuant to the Amended and Restated Agency Agreement, dated April 28, 2015, among CNH Industrial N.V., CNH Industrial Finance Europe S.A., Citibank, N.A.,
London office, as issuing and principal paying agent, agent bank and exchange agent, Citicorp International Limited as lodging and paying agent, the other paying agents named therein, Citigroup Global Markets Deutschland AG, as registrar and
transfer agent, and the other transfer agents named therein.
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•
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Credit Agreement, dated November 21, 2014 (as amended and restated by an Amendment Agreement, dated June 20, 2016), by and among CNH Industrial N.V., CNH Industrial Finance S.p.A., CNH Industrial Finance
Europe S.A., CNH Industrial Finance North America, Inc., the banks party thereto, the designated entities party thereto, Citibank Europe PLC, UK Branch, as facility agent, and the bookrunners and arrangers party thereto, relating to a multicurrency
revolving credit facility of €1,750,000,000.
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•
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Indenture, dated as of June 28, 2010 (as supplemented by the first supplemental indenture dated as of December 21, 2012, the second supplemental indenture dated as of September 27, 2013, the third
supplemental indenture dated as of May 1, 2014 and the fourth supplemental indenture dated as of July 1, 2014), by and among Case New Holland Industrial Inc., as issuer, CNH Industrial N.V. and the other Guarantors party thereto and Wells
Fargo Bank, National Association, as trustee.
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August 18, 2016
BNP Paribas Securities Corp.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC
As Representatives of the several Underwriters,
c/o J.P. Morgan Securities LLC,
383 Madison Avenue,
New York,
New York 10179.
Ladies and Gentlemen:
This is with reference to the registration under the Securities Act of 1933 (the “Securities Act”) and offering of $600,000,000
aggregate principal amount of 4.50% Notes due 2023 (the “Securities”) of CNH Industrial N.V., a public company with limited liability incorporated under the laws of The Netherlands (the “Company”).
The Registration Statement relating to the Securities (File No. 333-206891) was filed on Form F-3 in accordance with procedures of
the Securities and Exchange Commission (the “Commission”) permitting a delayed or continuous offering of securities pursuant thereto and, if appropriate, a post-effective amendment, document incorporated by reference therein or prospectus
supplement that provides information relating to the terms of the securities and the manner of their distribution. The Securities have been offered by the Prospectus of the Company relating to the Securities, dated September 11, 2015 (the
“Basic Prospectus”), as supplemented by the Prospectus Supplement, dated August 4, 2016 (the “Prospectus Supplement”), which updates or supplements certain information contained in the Basic Prospectus. The Basic Prospectus,
as supplemented by the Prospectus Supplement, does not necessarily contain a current description of the Company’s business and affairs and the Prospectus of CNH Industrial Capital LLC (“CNH Industrial Capital”), dated
September 11, 2015, which forms part of the Registration Statement, does not necessarily contain a current description of CNH Industrial Capital’s business and affairs since, pursuant to
Form F-3,
each of the Basic Prospectus, as supplemented by the Prospectus Supplement, and such Prospectus of CNH Industrial Capital incorporates by reference certain documents filed with the Commission
that contain information as of various dates.
As United States counsel to the Company, we reviewed the Registration Statement, the Basic
Prospectus, and the documents listed in Schedule A (those listed documents, taken together with the Basic Prospectus, being referred to herein as the “Pricing Disclosure Package”) and participated in discussions with your
representatives and those of the Company, its accountants and its Dutch counsel. Between the date of the
BNP Paribas Securities Corp.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC
Prospectus Supplement and the time of delivery of this letter, we participated in further discussions with your representatives and those of the Company, its accountants and its Dutch counsel
concerning certain matters relating to the Company and reviewed certificates of certain officers of the Company, letters addressed to you from the Company’s accountants and an opinion addressed to you from the Company’s Dutch Counsel. On
the basis of the information that we gained in the course of the performance of the services referred to above, considered in the light of our understanding of the applicable law (including the requirements of
Form F-3
and the character of prospectus contemplated thereby) and the experience we have gained through our practice under the Securities Act, we confirm to you that, in our opinion, the Registration
Statement, as of the date of the Prospectus Supplement, and the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material
respects relevant to the offering of the Securities, to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Commission thereunder. Also, we confirm to you that the statements
contained under the caption “Description of Debt Securities” in the Registration Statement, the Basic Prospectus and the Pricing Disclosure Package and under the captions “Description of the Notes” and “Underwriting” in
the Prospectus Supplement and the Pricing Disclosure Package, insofar as they relate to provisions of the Indenture, the officers’ certificate and the Underwriting Agreement therein described, and insofar as relevant to the offering of the
Securities, constitute fair and accurate summaries of such provisions in all material respects, and the statements contained under the captions “Material Tax Considerations — Certain U.S. Federal Income Tax Consequences” and
“Material Tax Considerations — Certain United Kingdom Tax Consequences” in the Prospectus Supplement and the Pricing Disclosure Package, insofar as they relate to provisions of the United States Federal tax law and the United Kingdom
tax law therein described, constitute a fair and accurate summary of such provisions in all material respects.
Further, nothing that came
to our attention in the course of such review has caused us to believe that, insofar as relevant to the offering of the Securities,
(a)
the Registration Statement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not
misleading, or
(b) the Pricing Disclosure Package, as of 3:58 P.M. (New York City time) on August 4, 2016, contained any untrue
statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(c) the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue
statement of a material fact or omitted 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.
BNP Paribas Securities Corp.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC
We also advise you that nothing that came to our attention in the course of the procedures described in the
second sentence of the preceding paragraph has caused us to believe that the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the time of delivery of this letter, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure
Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph. Also, we do not express any opinion or belief as to the financial statements or other financial data derived from accounting records or as to
management’s report of its assessment of the effectiveness of the Company’s internal control over financial reporting, each as included in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing
Disclosure Package, or as to the statement of the eligibility of the Trustee under the Indenture under which the Securities are being issued.
BNP Paribas Securities Corp.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC
This letter is furnished by us, as United States counsel to the Company, to you, as
Representatives of the several Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may not be relied upon by any other person. This letter may not be quoted, referred to or furnished to any purchaser or
prospective purchaser of the Securities and may not be used in furtherance of any offer or sale of the Securities.
Schedule A
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(aa)
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Preliminary Prospectus Supplement, dated August 4, 2016 (including the documents incorporated by reference therein).
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(ab)
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Pricing Term Sheet, dated August 4, 2016.
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EXHIBIT B
FORM OF OPINION OF FRESHFIELDS BRUCKHAUS DERINGER LLP
COMPANY’S DUTCH COUNSEL
Exhibit B-1
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Deutsche Bank Securities Inc.,
BNP Paribas
Securities Corp.,
Citigroup Global Markets Inc.,
J.P. Morgan
Securities LLC
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Amsterdam
Freshfields Bruckhaus Deringer
LLP
Strawinskylaan 10
1077 XZ Amsterdam
Postbus 75299
1070 AG Amsterdam
T
+31 20 485 7000
+31 20 485 7663 (Direct)
F
+31 20 517 7663
E
dirkjan.smith@freshfields.com
www.freshfields.com
Doc ID
Our Ref
DJS/IvD/TE
CLIENT MATTER NO. 162942:0014
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[DATE]
Dear Sirs,
CNH INDUSTRIAL N.V. NOTES
ISSUANCE
Introduction
1. We are acting as Dutch
legal advisers to CNH Industrial N.V. (the
Company
) with respect to certain matters of Netherlands law in relation to the issue by the Company of notes due [●] (the
Notes
). In this matter we have taken instructions
solely from the Company.
We have been asked by the Company pursuant to Section 7(b)(ii) of the Underwriting Agreement dated as of
[●] August 2016 between the Company and Deutsche Bank Securities Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC as representatives of the underwriters named in Schedule 1 thereto (together the
Underwriters
) (the
Underwriting Agreement
) to deliver our opinion in respect of the issue of the Notes.
Words
and expressions defined in paragraph 2 below shall, unless the context otherwise requires, bear the same respective meaning when used in this opinion.
Documents reviewed
2. In rendering the opinions set out
below we have examined the following documents:
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(a)
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a scanned copy of an extract from the Commercial Register of the Dutch Chamber of Commerce (the
Commercial Register
) dated [●] August 2016 relating to the Company, and confirmed upon our request by
the Commercial Register by telephone to be correct as at the date hereof (the
Extract
);
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Freshfields Bruckhaus Deringer LLP is a
limited liability partnership registered in England and Wales with registered number OC334789. It is authorised and regulated by the Solicitors Regulation Authority. Dutch Chambers of Commerce registration number 34368197. For regulatory information
please refer to www.freshfields.com/support/legalnotice.
A list of the members (and of the non-members who are designated as partners) of Freshfields
Bruckhaus Deringer LLP and their qualifications is available for inspection at its registered office, 65 Fleet Street, London EC4Y 1HS or at the above address. Any reference to a partner means a member, or a consultant or employee with equivalent
standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Freshfields Bruckhaus Deringer LLP’s Amsterdam office includes attorneys, civil law notaries, tax advisers and solicitors.
Bank account:
Stg Beh Derdengld Freshfields Bruckhaus Deringer
LLP, ABN AMRO Bank N.V., IBAN: NL14ABNA0256049947, BIC: ABNANL2A
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(b)
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a scanned copy of the deed of incorporation of the Company dated 23 November 2012;
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(c)
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a scanned copy of the articles of association of the Company dated 29 September 2013 which, according to the Extract, are the Company’s articles of association currently in force and effect (the
Articles
of Association
);
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(d)
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a scanned copy of the signed unanimous written resolutions of the board of directors of the Company dated 7 September 2015 (the
Board Resolutions
);
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(e)
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a scanned copy of the signed written resolutions of the pricing committee established pursuant to the Board Resolutions and dated [●] August 2016 (the
Pricing Committee Resolutions
and together with
the Board Resolutions, the
Resolutions
);
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(f)
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a scanned copy of the executed indenture between the Company as issuer and U.S. Bank National Association as trustee, dated [●] August 2016 (the
Indenture
);
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(g)
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[a scanned copy][scanned copies] of the executed global note[s], dated [●] August 2016, representing the Notes;
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(h)
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a scanned copy of the executed underwriting agreement between the Company and [●], as representatives of the underwriters named in Schedule 1 thereto, dated [●] August 2016; and
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(i)
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copies of the Preliminary Prospectus Supplement and the Prospectus Supplement.
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The documents referred to
above in items (a) to (i) (inclusive) are herein referred to as the
Documents
; the documents referred to above in items (b) to (e) (inclusive) are herein referred to as the
Corporate Documents
; and the
documents referred to above in items (f) to (h) (inclusive) are together referred to as the
Opinion Documents
and sometimes are individually referred to as an
Opinion Document
.
Nature of Opinion and Observations
3. This opinion is
subject to the following limitations:
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(a)
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This opinion is confined to the laws with general applicability (
wettelijke regels met algemene gelding
) of the Netherlands and, insofar as they are directly applicable in the Netherlands, the European Union, all
as they stand as at the date hereof and as such laws are currently interpreted in published authoritative case law of the courts of the Netherlands (
Netherlands law
); accordingly, we express no opinion with regard to any
other system of law (including the law of jurisdictions other than the Netherlands in which our firm has an office), even in cases where, in accordance with Netherlands law, any foreign law should be applied; furthermore, we do not express any
opinion on public international law or on the rules of or promulgated under any treaty or by any treaty organisation (except as otherwise stated above).
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(b)
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To the extent that the laws of the State of New York and any applicable federal laws of the United States of America (upon all of which you have received the advice of your US counsel and the legal opinion of the US
counsel to the Company) may be relevant, we have made no independent investigation of such laws and our opinion is subject to the effect of such laws. We express no views on the validity of the matters set out in such opinions.
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(c)
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With the exception of paragraphs 4(q) – 4(t), we express no opinion on any taxation laws of any jurisdiction (including the Netherlands).
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(d)
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We have not considered whether the transactions contemplated by the Opinion Documents comply with anti-trust, competition, public procurement or state aid laws, nor whether any filings or clearances are required under
such laws.
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(e)
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We express no opinion on any data protection or insider trading laws of any jurisdiction (including the Netherlands).
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(f)
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We express no opinion that the future or continued performance of a party’s obligations or the consummation of the transactions contemplated by the Opinion Documents will not contravene Netherlands law, its
application or interpretation if altered in the future.
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(g)
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We express no opinion as to the correctness of any representation given by any of the parties (express or implied) under or by virtue of the Documents, save if and insofar as the matters represented are the subject
matter of a specific opinion herein.
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(h)
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In rendering this opinion we have exclusively examined the Documents and we have conducted such investigations of Netherlands law as we have deemed necessary or advisable for the purpose of giving this opinion letter;
as to matters of fact we have relied on the Documents and any other document we have deemed relevant, and on statements or certificates of public officials.
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(i)
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We have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any documents, or for
verifying that no material facts or provisions have been omitted therefrom; nor have we verified the accuracy of any assumption made in this opinion letter.
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(j)
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We have not been responsible for verifying the accuracy or correctness of any formula or ratio (whether expressed in words or symbols) or financial schedule contained in the Opinion Documents, or any cash flow model
used or to be used in connection with the transactions contemplated thereby, or whether such formula, ratio, financial schedule or cash flow model appropriately reflects the commercial arrangements between the parties.
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(k)
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We have not been involved in the preparation or negotiation of the Opinion Documents, and have reviewed them only for the limited purpose of giving this opinion. Accordingly, we express no view as to the suitability of
the Opinion Documents or of their provisions or their general compliance with market practice or any commercial aspects of the Opinion Documents.
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(l)
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Netherlands legal concepts are expressed in English terms and not in their original Dutch terms; the concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws
of other jurisdictions.
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(m)
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This opinion may only be relied upon on the express condition that any issues of the interpretation or liability arising hereunder will be governed by Netherlands law.
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(n)
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This opinion speaks as of the date hereof; no obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof,
which may affect this opinion in any respect.
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(o)
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The opinions expressed in this opinion letter have no bearing on declarations made, opinions expressed or statements of a similar nature made by any of the parties in the Opinion Documents.
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O
PINION
4. On the basis of, and subject
to, the foregoing, the assumptions in Schedule 1, the qualifications in Schedule 2 and any factual matters, documents or events not disclosed to us, we are of the opinion that as at the date hereof:
Due incorporation and existence
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(a)
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The Company has been validly incorporated and is existing as a public company with limited liability (
naamloze vennootschap
) under Netherlands law.
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Corporate power
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(b)
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The Company has the necessary corporate power to enter into the Opinion Documents and to perform its obligations thereunder.
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Corporate authorisation
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(c)
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The execution by the Company of the Opinion Documents and the performance by the Company of its obligations thereunder have been duly authorised by all corporate action required to be taken by the Company under
Netherlands corporate law and the Articles of Association.
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Due execution
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(d)
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The Opinion Documents have been validly executed on behalf of the Company in accordance with Netherlands law.
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Enforceability
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(e)
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Under Dutch law, the choice of the laws of the State of New York as the governing law of the Opinion Documents is recognised as a valid choice of law and accordingly the validity, binding effect and the enforceability
against the Company of the contractual obligations contained therein are governed by the laws of the State of New York;
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No conflicts
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(f)
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The execution by the Company of the Opinion Documents and the performance by the Company of its obligations thereunder do not conflict with the overriding mandatory provisions of Netherlands law or the Articles of
Association.
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Jurisdiction
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(g)
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Giving regard to our opinion in paragraph (e), the submission by the Company in accordance with the terms of the jurisdiction provisions in the Underwriting Agreement and the Indenture to the jurisdiction of any U.S.
Federal or New York State court in the Borough of Manhattan, City of New York, New York is binding upon the Company. This does not preclude that claims for provisional measures in summary proceedings may be brought before a competent court in the
Netherlands.
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(h)
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The choice of the laws of the State of New York as the governing law of the Opinion Documents is a valid choice of law with respect to the obligations of the Company thereunder and binding under the laws of the
Netherlands.
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(i)
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In the absence of an applicable treaty between the United States of America and the Netherlands, a judgment obtained against the Company in the U.S. Federal or New York State court in the Borough of Manhattan, City of
New York, New York in a dispute with respect to which the parties have validly agreed in the Underwriting Agreement that such courts are to have jurisdiction, will not be directly enforced by the courts in the Netherlands. In order to obtain a
judgement which is enforceable in the Netherlands, the claim must be relitigated before a competent court of the Netherlands; the relevant Netherlands court has discretion to attach such weight to a judgment of the U.S. Federal or New York State
court in the Borough of Manhattan, City of New York, New York as it deems appropriate; based on case law, however, the courts of the Netherlands may be expected to recognize the binding effect of a final, conclusive and enforceable money judgment of
a court of competent jurisdiction in the United States of America without re-examination or re-litigation of the substantive matters adjudicated thereby, provided that (i) the relevant U.S. Federal or New York State court in the Borough of
Manhattan, City of New York, New York had jurisdiction in the matter in accordance with standards which are generally accepted internationally; (ii) the proceedings before such court complied with principles of proper procedure; and
(iii) such judgment does not conflict with the public policy of the Netherlands.
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Consents
|
(j)
|
The Transaction Documents are in proper legal form under the laws of the Netherlands for the enforcement thereof
against each of the parties thereto, as applicable, under the laws of the Netherlands; and no authorisation, approval, consent or order from, or filing with, any governmental authority or court in the Netherlands is required to be made or obtained
as at the date hereof in connection with the issue and offering of the Notes, the
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execution by the Company of the Opinion Documents or the performance by the Company of its obligations thereunder which, if not obtained or made, would adversely affect the validity or
enforceability of the Opinion Documents.
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Ranking
|
(k)
|
If Insolvency Proceedings opened against the Company in the Netherlands, any actual and unconditional monetary claims (
geldvorderingen
) against the Company under the Opinion Documents will rank equally and
rateably with all such other claims against the Company which are unsecured and which are not preferred by operation of law.
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No Immunity
|
(l)
|
The Company does not enjoy sovereign immunity from the jurisdiction of the competent Dutch courts in respect of the enforcement of any of its obligations under the Opinion Documents.
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No License to Enforce Rights
|
(m)
|
The Underwriters are not required under Dutch law to obtain any license, permit or other similar authorisation as a condition solely to the enforcement of its rights under the Opinion Documents.
|
Qualification to do business
|
(n)
|
The Company is qualified to do business in each jurisdiction where it is required to be so qualified, except where failure to so qualify would not reasonably be expected to have a material adverse effect on the current
or future financial position, stockholders’ equity or results of operations of the Company.
|
Process Agent
|
(o)
|
The appointment by the Company of the Process Agent pursuant to Section 21 of the Underwriting Agreement, and the designation by the Company of CNH Industrial America LLC pursuant to sections 1.05 and 1.13 of the
Indenture to receive service of process, is legal, valid and binding under the laws of the Netherlands.
|
Fair summary
|
(p)
|
The statements contained in the Preliminary Prospectus Supplement and the Prospectus Supplement on pages [● to ●] under the header “Enforcement of Civil Liability Judgements – the Netherlands”
insofar as they purport to describe or summarize the provisions of Dutch laws, regulations, proceedings, and documents referred to therein, are accurate descriptions or summaries thereof in all material respects.
|
Taxation
|
(q)
|
No Netherlands registration tax, capital tax, custom duty, transfer tax, stamp duty or any other similar documentary tax or duty, other than court fees, will be payable in the Netherlands in respect of or in connection
with the execution, delivery and/or enforcement by legal proceedings (including the enforcement of any foreign judgment in the courts of the Netherlands) of the Opinion Documents or the performance by the Company of its obligations thereunder.
|
|
(r)
|
All payments made by the Company under the notes may be made free of withholding or deduction of any taxes of whatever nature imposed, levied, withheld or assessed by the Netherlands or any political subdivision or
taxing authority thereof or therein.
|
|
(s)
|
No holder of notes will be deemed to be resident, domiciled, or carrying on a business in the Netherlands for Netherlands tax purposes by reason only of the entry into, performance or enforcement of the Opinion
Documents.
|
|
(t)
|
The statements contained in the Preliminary Prospectus Supplement and the Prospectus Supplement on pages [● to ●] under the header “Material Tax Consequences - Certain Netherlands Tax Consequences”
are a true and accurate summary of the material Netherlands tax consequences of the acquisition, ownership and disposal of notes to the holders of notes described therein.
|
Benefit of opinion
5. This opinion is addressed to you
solely for your own benefit in relation to the transactions contemplated by the Opinion Documents and, except with our prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person or used or relied upon
by you for any other purpose.
Conflicts of Interest
6. We have not advised you on the content of any of the Documents or assisted you in any way in relation to their negotiation; on those matters you have been
separately advised by your counsel. We accept a duty of care to you in relation to the matters opined on in this opinion, but the giving of this opinion is not to be taken as implying that we owe you any wider duty of care in relation to the issue
of the Notes or the content of the Documents and their commercial and financial implications. Notwithstanding the provision of this opinion, we expressly reserve the right to represent our client (if it so requests) in relation to any matters
affecting any of the Documents at any time in the future (whether or not you retain separate advisers on any such matter), and the fact that we have provided this opinion to you shall not be deemed to have caused us to have any conflict of interest
in relation to the giving of any such advice. We shall have no obligation to advise you on any of the matters referred to in this opinion. The provision of this opinion to you does not create or give rise to any client relationship between this firm
and you.
|
|
|
Yours faithfully,
|
|
|
|
Freshfields Bruckhaus Deringer LLP
|
SCHEDULE 1
ASSUMPTIONS
In rendering the opinions in
this opinion letter we have assumed that:
Authenticity of documents
|
(a)
|
all documents reviewed by us and submitted to us as originals are true, complete and authentic; all documents reviewed by us and submitted to us as electronic copy, facsimile or photocopy are in conformity with the
originals and such originals are true, complete and authentic; and the signatures on all such documents are genuine;
|
|
(b)
|
none of the Opinion Documents has since its execution been amended, supplemented, rescinded, terminated by any of the parties thereto or declared null and void by a competent court;
|
Due incorporation and existence
|
(c)
|
at the time when any Corporate Document was signed, each natural person who is a party to or signatory of that Corporate Document, as applicable (i) had all requisite power, authority and legal capacity to sign
that Corporate Document and to perform all juridical acts (
rechtshandelingen
) and other actions contemplated thereby and (ii) has validly signed that Corporate Document;
|
|
(d)
|
the information set forth in the Extract is accurate and complete on the date hereof;
|
|
(e)
|
(i) the Company has not been declared bankrupt (
failliet verklaard
), (ii) the Company has not been granted a suspension of payments (
surseance van betaling
) (iii) the Company has not become
subject to any of the other insolvency proceedings (together with the proceedings in paragraph (e)(i) and (e)(ii) referred to as the
Insolvency Proceedings
) referred to in Article 1(1) of Council Regulation (EC) no. 1346/2000 of
29 May 2000 on Insolvency Procedures (the
Insolvency Regulation
), (iv) the Company has not been dissolved (
ontbonden
), (v) the Company has not ceased to exist pursuant to a legal merger or demerger (
juridische
fusie of splitsing
), and (vi) no order for the administration (
bewind
) of the assets of the Company has been made; these assumptions are supported by our enquiries today with the Commercial Register, the online EU Insolvency register
(
EU Insolventieregister
) and the court in Amsterdam, which have not revealed any information that any such event has occurred with respect to the Company; however, such enquiries are not conclusive evidence that no such events have occurred;
|
Corporate power
|
(f)
|
the Articles of Association have not been amended;
|
Corporate authorisation
|
(g)
|
the Resolutions have not been revoked (
ingetrokken
) or amended and have not been and will not be declared null and void by a competent court and the powers of attorney granted in the Resolutions have not been,
and will not be, amended, revoked (
ingetrokken
), terminated or declared null and void by a competent court and the statements and confirmations set out in the Resolutions are true and correct;
|
|
(h)
|
the entering into the Opinion Documents and the transactions contemplated thereby are in the corporate interests (
vennootschappelijk belang
) of the Company;
|
|
(i)
|
none of [●] or any of the managing directors of the Company (in whatever capacity) has a conflict of interest (
tegenstrijdig belang
) with the Company in relation to the transactions contemplated by the
Opinion Documents;
|
|
(j)
|
the Company has complied with its obligations under the Netherlands Works Council Act (
wet op de ondernemingsraden
) with respect to the transactions contemplated by the Opinion Documents;
|
|
(k)
|
the Company’s borrowing, investment and lending activities, whether or not related to the Opinion Documents, when regarded in combination with its other commercial or financial activities, do not and will not bring
it within the definition of a credit institution (
kredietinstelling
) as defined in the Dutch Financial Supervision Act (
Wet op het financieel toezicht
,
FSA
), particularly, that the Company has not been made available
(
ter beschikking verkregen
) any repayable funds (
opvorderbare gelden
) from the public (within the meaning of such term in the FSA);
|
Enforceability
|
(l)
|
each of the parties to any of the Opinion Documents (other than the Company) (i) has been validly incorporated, is validly existing and, to the extent relevant in such party’s jurisdiction, in good standing
under the laws applicable to such party, (ii) has the power, capacity and authority to enter into, execute and deliver the Opinion Documents to which it is a party and to exercise its rights and perform its obligations thereunder, and
(iii) has duly authorised and validly executed and, to the extent relevant, delivered all Opinion Documents to which it is a party;
|
|
(m)
|
each of the Opinion Documents constitutes the legal, valid, binding and enforceable obligations of each party thereto (other than the Company) enforceable against such party in accordance with its terms;
|
|
(n)
|
under the laws of the State of New York to which the Opinion Documents are expressed to be subject and under any other applicable laws (other than Netherlands law), (i) the Company has validly executed and, to the
extent relevant, delivered, the Opinion Documents and (ii) each of the Opinion Documents constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms;
|
|
(o)
|
the Opinion Documents properly represent the intentions (
wil
) of the parties thereto formed free of error, fraud, duress or abuse of circumstances;
|
Jurisdiction
|
(p)
|
the submission by the Company to the jurisdiction of the U.S. Federal or New York State court in the Borough of Manhattan, City of New York, New York with regard to any disputes under the Underwriting Agreement and the
Indenture is valid and binding under the laws of any applicable jurisdiction (other than the Netherlands) and the U.S. Federal or New York State court in the Borough of Manhattan, City of New York, New York will assume jurisdiction on the basis
thereof;
|
Consents
|
(q)
|
the consent, approval or authorisation (other than any consent, approval or authorisation of the kind referred to in paragraph 4(j) of the opinion letter) of any person and any other step which is required in
relation to the issue and offering of the Notes, the execution and, to the extent relevant, delivery of the Opinion Documents and the performance and observance of the terms thereof by the parties has been obtained or taken at the date of this
opinion or will be taken in good time and has been or will be maintained, and that none of those transactions will infringe the terms of, or constitute a default under, any agreement or other instrument or obligation to which any party to the
Opinion Documents is a party, in such a manner as would entitle any other party to the Opinion Documents to assert that its liability to perform any of its obligations under any of the Opinion Documents was thereby diminished or impaired;
|
Ranking
|
(r)
|
under any applicable law (other than Netherlands law) all claims against the Company under the Opinion Documents rank at least equally and rateably with any other claims against the Company that are unsecured and not
preferred by operation of law;
|
Process Agent
|
(s)
|
Under any applicable law (other than Netherlands law), (i) the appointment by the Company of [●] (the
Process Agent
) pursuant to Section 21 of the Underwriting Agreement as its authorised
agent upon whom documents may be served in any proceedings relating to the Underwriting Agreement and any other documents required to be served in relation to those proceedings and (ii) the designation by the Company of CNH Industrial America
LLC pursuant to sections 1.05 and 1.13 of the Indenture to receive service of process, constitute valid, binding and effective appointments;
|
Tax
|
(t)
|
the terms of the Opinion Documents are
bona fide
arm’s length commercial terms and the Opinion Documents are entered into for
bona fide
commercial reasons; and
|
|
(u)
|
The Opinion Documents will not be executed on behalf of any party in the Netherlands by a person who has the authority, and habitually exercises such authority in the Netherlands, to execute contracts on behalf of such
party.
|
SCHEDULE 2
QUALIFICATIONS
Our opinion is subject to
the following qualifications:
Insolvency proceedings
|
(a)
|
our opinion is subject to and limited by the provisions of any applicable bankruptcy, insolvency, moratorium, suspension of payments, emergency and other similar rules and laws of general application relating to or
affecting generally the enforcement of creditors’ rights and remedies from time to time in effect; no opinion is given or implied herein that if insolvency proceedings would be opened with respect to the Company, such insolvency proceedings
would be opened in the Netherlands or be governed by Netherlands law; no opinion is given or implied herein on the effects of any foreign laws that may apply in such insolvency proceedings pursuant to the Insolvency Regulation or otherwise;
|
|
(b)
|
a power of attorney (
volmacht
) or mandate (
lastgeving
):
|
|
|
(i)
|
can under Netherlands law only be made irrevocable to the extent its object is the performance of juridical acts (
rechtshandelingen
) in the interest of the representative appointed thereby or of a third party
subject to the power of the court to amend or disapply the provisions by which it is made irrevocable for serious reasons (
gewichtige redenen
));
|
|
|
(ii)
|
will terminate or become ineffective upon Insolvency Proceedings being opened under Dutch law with respect to the issuer thereof (irrespective of the law applicable to the power of attorney); and
|
|
|
(iii)
|
will, unless stipulated otherwise, terminate or become ineffective upon Insolvency Proceedings being opened under Dutch law with respect to the attorney thereunder (irrespective of the law applicable to the power of
attorney);
|
Enforceability
|
(c)
|
our opinions with respect to the validity or enforceability of the Opinion Documents or any legal act (
rechtshandeling
) forming part thereof or contemplated thereby are subject to and limited by the protection
afforded by Netherlands law to creditors whose interests have been adversely affected pursuant to the rules of Netherlands law relating to (x) unlawful acts (
onrechtmatige daden
) based on Section 6:162 et seq. of the Netherlands
Civil Code (
Burgerlijk Wetboek
) and (y) fraudulent conveyance or preference (
actio pauliana
) within the meaning of Section 3:45 of the Netherlands Civil Code (
Burgerlijk Wetboek
) and/or Section 42 et seq. of the
Netherlands Bankruptcy Act (
Faillissementswet
);
|
|
(d)
|
the terms “
enforceable
” and “
enforceability
” as used in this opinion letter
indicate that the relevant obligations are of a type for which Netherlands law generally provides a
|
|
|
remedy; they do not imply that the obligations and remedies provided in the Opinion Documents would always be enforceable in accordance with their specific terms; enforcement in the courts of the
Netherlands will in any event be subject to the acceptance by such courts of jurisdiction, the availability of defences and the nature of the remedies available in the Netherlands courts;
|
|
(e)
|
any enforcement of the Opinion Documents and foreign judgments (including enforcement on the basis of a European Enforcement Order and, in case of proceedings initiated on or after 10 January 2015, the Recast
Judgments Regulation) in the Netherlands will be subject to the rules of civil procedure as applied by the courts of the Netherlands; service of process for any proceedings before the Dutch courts must be performed in accordance with Dutch rules of
civil procedure; the taking of concurrent proceedings in more than one jurisdiction in which, in case of proceedings initiated on or after 10 January 2015, the Recast Judgments Regulation, the Convention on Jurisdiction and the Enforcement of
Judgements in Civil and Commercial Matters of 27 September 1968 (the
Brussels Convention
), the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (the
1988 Lugano
Convention
) or the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the
2007 Lugano Convention
and together with the Brussels Convention and the 1988
Lugano Convention, the
Conventions
), is applicable, may be precluded by (i) section 21 of the Brussels Convention or the 1988 Lugano Convention and, in case of proceedings initiated on or after 10 January 2015, by section 27
of the Recast Judgments Regulation or (ii) the 2007 Lugano Convention; as regards jurisdiction generally, the Dutch courts have powers to stay proceedings if concurrent proceedings are brought elsewhere; furthermore, the ability of any party to
assume control over another party’s proceedings before the Dutch courts may be limited by Dutch rules of civil procedure;
|
|
(f)
|
the concept of “delivery” of a document is not known under Netherlands law and, therefore, delivery of a document is not required under Netherlands law in order to render a document valid, legally binding and
enforceable;
|
|
(g)
|
it is uncertain under Netherlands law whether, upon the enforcement of a money judgment expressed in a foreign currency against assets situated in the Netherlands by way of an enforced sale (
executieverkoop
),
proceeds can be obtained in such foreign currency;
|
|
(h)
|
if Insolvency Proceedings would be opened with respect to the Company under Netherlands law, claims of which payment is sought from the estate (and not from the enforcement of collateral security) in any currency other
than Euro must be valued on the basis of the exchange rate prevailing on the date on which such Insolvency Proceedings are opened;
|
|
(i)
|
no opinion is given herein with respect to the validity and effect of any provision in the Opinion Documents excluding the right of any party thereto to claim the nullity or the dissolution thereof;
|
|
(j)
|
the Company may in certain circumstances have to comply with reporting requirements in connection with payments made to and by the Company under the Opinion Documents pursuant to the Financial Foreign Relations Act 1994
(
Wet financiële betrekkingen buitenland 1994
) and the rules promulgated thereunder;
|
|
(k)
|
any provision in the Opinion Documents to the effect that such agreements or any of the provisions thereof shall be binding on the assigns (
rechtsopvolgers niet onder algemene titel
) of any party thereto may not
be enforceable in the Netherlands against any such assign in the absence of any further agreement to that effect with any such assign;
|
|
(l)
|
no opinion is given herein with respect to (i) any authorisation which any of the parties to the Opinion Documents (other than the Company) may require under the Netherlands Financial Supervision Act (
Wet op het
financieel toezicht
) or the Trust Offices Supervision Act (
Wet toezicht trustkantoren
) in order to perform the activities and services contemplated by the Opinion Documents or (ii) the consequences of the lack of such authorisation
on any of the Opinion Documents;
|
|
(m)
|
the amount of any payment under the Opinion Documents which is in the nature of a penalty or liquidated damage payment may be mitigated by order of the court if this is manifestly required in the interest of fairness;
|
|
(n)
|
we have not verified the accuracy and completeness of the information included in the Prospectus and no opinion is given or implied herein that such information is not misleading; we express no opinion as to whether the
Prospectus contains all the information required pursuant to the Netherlands Financial Supervision Act (
Wet op het financieel toezicht
);
|
|
(o)
|
with respect to the obligations of the Company under any of the Opinion Documents, the courts of the Netherlands may (i) apply Netherlands law in a situation where those rules are mandatory irrespective of the law
otherwise applicable to that Opinion Document, (ii) give effect to the mandatory rules or the law of any other country with which the situation has a close connection, if and insofar as, under law of such country, those rules must be applied
whatever the law applicable to that Opinion Document, (iii) refuse the application of a rule of the law of any country otherwise applicable to that Opinion Document, if such application is manifestly incompatible with the public policy
(“
ordre public
”) of the Netherlands and (iv) have regard to the laws of the country in which performance takes place as to the manner of performance and the steps to be taken in the event of defective performance;
|
Immunity
|
(p)
|
any assets of the Company that are destined for use in the public service are immune from attachment; furthermore, no attachment may be made on books and records required for the Company’s business;
|
Jurisdiction
|
(q)
|
the recognition of the submission by the Company to the jurisdiction of the U.S. Federal or New York State court in the Borough of Manhattan, City of New York, New York with respect to the Underwriting Agreement and the
Indenture will be subject to the conditions and limitations of domestic Netherlands rules of civil procedure, such as the limitation that the application for provisional, including protective, measures which are available under the laws of a
jurisdiction may be made to the courts of such jurisdiction;
|
Non-contractual obligations
|
(r)
|
the law applicable to any non-contractual obligations arising out of or in connection with the Opinion Documents will be determined in accordance with Regulation (EC) No. 864/2007 on the law
applicable to non-contractual obligations (the
Rome II Regulation
), provided that (x) the relevant non-contractual obligation is within the scope of the Rome II Regulation, (y) the choice of the laws of the State of New
York, United States of America, as the governing law of the Opinion Documents is permitted by the Rome II Regulation and (z) the events giving rise to the damage occur after 11 January 2009; and
|
Foreign documents
|
(s)
|
the opinion and other statements expressed herein relating to the Opinion Documents are subject to the qualification that as Dutch lawyers we are not qualified or able to assess the true meaning and purport under
applicable law (other than Netherlands law) of the terms of the Opinion Documents and the obligations thereunder of the parties thereto, and we have made no investigation of such meaning and purport; our review of the Opinion Documents and any other
documents subject or expressed to be subject to any law other than Netherlands law has therefore been limited to the terms of such documents as they appear to us on the basis of such review and only in respect of any involvement of Netherlands law.
|
Exhibit 4.1
CNH INDUSTRIAL N.V.
as Issuer
and
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
INDENTURE
Dated as of August 18, 2016
DEBT SECURITIES
Certain Sections of this Indenture relating to Sections 3.10 through 3.18,
inclusive, of the Trust Indenture Act of 1939:
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
Section 310(a)(1)
|
|
6.09
|
|
(a)(2)
|
|
6.09
|
|
(a)(3)
|
|
Not Applicable
|
|
(a)(4)
|
|
Not Applicable
|
|
(a)(5)
|
|
6.09
|
|
(b)
|
|
6.08
|
|
|
|
6.10
|
|
Section 311(a)
|
|
6.13
|
|
(b)
|
|
6.13
|
|
Section 312(a)
|
|
7.01
|
|
|
|
7.02
|
|
(b)
|
|
7.02
|
|
(c)
|
|
7.02
|
|
Section 313(a)
|
|
7.03
|
|
(b)
|
|
7.03
|
|
(c)
|
|
7.03
|
|
(d)
|
|
7.03
|
|
Section 314(a)
|
|
10.09
|
|
(a)(4)
|
|
1.01
|
|
|
|
10.04
|
|
(b)
|
|
Not Applicable
|
|
(c)(1)
|
|
1.02
|
|
(c)(2)
|
|
1.02
|
|
(c)(3)
|
|
Not Applicable
|
|
(d)
|
|
Not Applicable
|
|
(e)
|
|
1.02
|
|
Section 315(a)
|
|
6.01
|
|
(b)
|
|
6.02
|
|
(c)
|
|
6.01
|
|
(d)
|
|
6.01
|
|
(e)
|
|
5.14
|
|
Section 316(a)
|
|
1.01
|
|
(a)(1)(A)
|
|
5.02
|
|
|
|
5.12
|
|
(a)(1)(B)
|
|
5.13
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
5.08
|
|
(c)
|
|
1.04
|
|
Section 317(a)(1)
|
|
5.03
|
|
(a)(2)
|
|
5.04
|
|
(b)
|
|
10.03
|
|
Section 318(a)
|
|
1.07
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
-i-
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
PARTIES
|
|
|
|
|
1
|
|
|
RECITALS OF THE COMPANY
|
|
|
1
|
|
|
|
|
ARTICLE ONE
|
|
|
|
|
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
|
|
|
|
|
|
|
SECTION 1.01
|
|
Definitions
|
|
|
1
|
|
|
SECTION 1.02
|
|
Certificates and Opinions
|
|
|
8
|
|
|
SECTION 1.03
|
|
Form of Documents Delivered to Trustee
|
|
|
9
|
|
|
SECTION 1.04
|
|
Acts of Holders; Record Dates
|
|
|
9
|
|
|
SECTION 1.05
|
|
Notices, Etc., to Trustee and the Company
|
|
|
11
|
|
|
SECTION 1.06
|
|
Notice to Holders; Waiver
|
|
|
12
|
|
|
SECTION 1.07
|
|
Conflict with Trust Indenture Act
|
|
|
12
|
|
|
SECTION 1.08
|
|
Effect of Headings and Table of Contents
|
|
|
13
|
|
|
SECTION 1.09
|
|
Successors and Assigns
|
|
|
13
|
|
|
SECTION 1.10
|
|
Separability Clause
|
|
|
13
|
|
|
SECTION 1.11
|
|
Benefits of Indenture
|
|
|
13
|
|
|
SECTION 1.12
|
|
Governing Law
|
|
|
13
|
|
|
SECTION 1.13
|
|
Consent to Jurisdiction
|
|
|
13
|
|
|
SECTION 1.14
|
|
Legal Holidays
|
|
|
14
|
|
|
|
|
ARTICLE TWO
|
|
|
|
|
SECURITY FORMS
|
|
|
|
|
|
|
SECTION 2.01
|
|
Forms Generally
|
|
|
14
|
|
|
SECTION 2.02
|
|
Form of Face of Security
|
|
|
14
|
|
|
SECTION 2.03
|
|
Form of Reverse of Security
|
|
|
16
|
|
|
SECTION 2.04
|
|
Form of Legend for Global Securities
|
|
|
21
|
|
|
SECTION 2.05
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
21
|
|
|
|
|
ARTICLE THREE
|
|
|
|
|
THE SECURITIES
|
|
|
|
|
|
|
SECTION 3.01
|
|
Amount Unlimited; Issuable in Series
|
|
|
21
|
|
|
SECTION 3.02
|
|
Denominations
|
|
|
24
|
|
|
SECTION 3.03
|
|
Execution, Authentication, Delivery and Dating
|
|
|
24
|
|
|
SECTION 3.04
|
|
Temporary Securities
|
|
|
26
|
|
|
SECTION 3.05
|
|
Registration, Registration of Transfer and Exchange
|
|
|
26
|
|
|
SECTION 3.06
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
28
|
|
-ii-
|
|
|
|
|
|
|
|
|
SECTION 3.07
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
29
|
|
|
SECTION 3.08
|
|
Persons Deemed Owners
|
|
|
30
|
|
|
SECTION 3.09
|
|
Cancellation
|
|
|
30
|
|
|
SECTION 3.10
|
|
Computation of Interest
|
|
|
30
|
|
|
SECTION 3.11
|
|
CUSIP Numbers
|
|
|
30
|
|
|
|
|
ARTICLE FOUR
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
SECTION 4.01
|
|
Satisfaction and Discharge of Indenture
|
|
|
31
|
|
|
SECTION 4.02
|
|
Application of Trust Money
|
|
|
32
|
|
|
|
|
ARTICLE FIVE
|
|
|
|
|
REMEDIES
|
|
|
|
|
|
|
SECTION 5.01
|
|
Events of Default
|
|
|
32
|
|
|
SECTION 5.02
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
33
|
|
|
SECTION 5.03
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
34
|
|
|
SECTION 5.04
|
|
Trustee May File Proofs of Claim
|
|
|
35
|
|
|
SECTION 5.05
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
35
|
|
|
SECTION 5.06
|
|
Application of Money Collected
|
|
|
36
|
|
|
SECTION 5.07
|
|
Limitation on Suits
|
|
|
36
|
|
|
SECTION 5.08
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
37
|
|
|
SECTION 5.09
|
|
Restoration of Rights and Remedies
|
|
|
37
|
|
|
SECTION 5.10
|
|
Rights and Remedies Cumulative
|
|
|
37
|
|
|
SECTION 5.11
|
|
Delay or Omission Not Waiver
|
|
|
37
|
|
|
SECTION 5.12
|
|
Control by Holders
|
|
|
37
|
|
|
SECTION 5.13
|
|
Waiver of Past Defaults
|
|
|
38
|
|
|
SECTION 5.14
|
|
Undertaking for Costs
|
|
|
38
|
|
|
SECTION 5.15
|
|
Waiver of Usury, Stay or Extension Laws
|
|
|
38
|
|
|
|
|
ARTICLE SIX
|
|
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
SECTION 6.01
|
|
Certain Duties and Responsibilities
|
|
|
39
|
|
|
SECTION 6.02
|
|
Notice of Defaults
|
|
|
39
|
|
|
SECTION 6.03
|
|
Certain Rights of Trustee
|
|
|
40
|
|
|
SECTION 6.04
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
41
|
|
|
SECTION 6.05
|
|
May Hold Securities
|
|
|
41
|
|
|
SECTION 6.06
|
|
Money Held in Trust
|
|
|
41
|
|
|
SECTION 6.07
|
|
Compensation and Reimbursement
|
|
|
42
|
|
|
SECTION 6.08
|
|
Disqualification; Conflicting Interests
|
|
|
42
|
|
|
SECTION 6.09
|
|
Corporate Trustee Required; Eligibility
|
|
|
43
|
|
-iii-
|
|
|
|
|
|
|
|
|
SECTION 6.10
|
|
Resignation and Removal; Appointment of Successor
|
|
|
43
|
|
|
SECTION 6.11
|
|
Acceptance of Appointment by Successor
|
|
|
44
|
|
|
SECTION 6.12
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
45
|
|
|
SECTION 6.13
|
|
Preferential Collection of Claims Against the Company
|
|
|
46
|
|
|
SECTION 6.14
|
|
Appointment of Authenticating Agent
|
|
|
46
|
|
|
|
|
ARTICLE SEVEN
|
|
|
|
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
|
|
|
|
|
|
|
SECTION 7.01
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
47
|
|
|
SECTION 7.02
|
|
Preservation of Information; Communications to Holders
|
|
|
47
|
|
|
SECTION 7.03
|
|
Reports by Trustee
|
|
|
48
|
|
|
|
|
ARTICLE EIGHT
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
SECTION 8.01
|
|
Limitation on Merger, Consolidation, Conveyance, Transfer or Lease
|
|
|
48
|
|
|
SECTION 8.02
|
|
Successor Substituted
|
|
|
49
|
|
|
|
|
ARTICLE NINE
|
|
|
|
|
AMENDMENTS, SUPPLEMENTS AND WAIVERS
|
|
|
|
|
|
|
SECTION 9.01
|
|
Without Consent of Holders
|
|
|
50
|
|
|
SECTION 9.02
|
|
With Consent of Holders
|
|
|
51
|
|
|
SECTION 9.03
|
|
Trustee to Sign Amendments, etc.
|
|
|
52
|
|
|
SECTION 9.04
|
|
Revocation and Effect of Consents; Effect of Amendments and Supplemental Indentures
|
|
|
52
|
|
|
SECTION 9.05
|
|
Conformity with TIA
|
|
|
52
|
|
|
SECTION 9.06
|
|
Reference in Securities to Supplemental Indentures
|
|
|
53
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
SECTION 10.01
|
|
Payment of Principal, Premium and Interest
|
|
|
53
|
|
|
SECTION 10.02
|
|
Maintenance of Office or Agency
|
|
|
53
|
|
|
SECTION 10.03
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
54
|
|
|
SECTION 10.04
|
|
Statement by Officers as to Default
|
|
|
55
|
|
|
SECTION 10.05
|
|
Existence and Maintenance of Properties
|
|
|
55
|
|
|
SECTION 10.06
|
|
Waiver of Certain Covenants
|
|
|
55
|
|
|
SECTION 10.07
|
|
Calculation of Original Issue Discount
|
|
|
55
|
|
|
SECTION 10.08
|
|
Payments for Consent
|
|
|
56
|
|
|
SECTION 10.09
|
|
Reports by the Company
|
|
|
56
|
|
-iv-
|
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
SECTION 11.01
|
|
Applicability of Article
|
|
|
56
|
|
|
SECTION 11.02
|
|
Election to Redeem; Notice to Trustee
|
|
|
57
|
|
|
SECTION 11.03
|
|
Selection of Securities to Be Redeemed
|
|
|
57
|
|
|
SECTION 11.04
|
|
Notice of Redemption
|
|
|
58
|
|
|
SECTION 11.05
|
|
Deposit of Redemption Price
|
|
|
58
|
|
|
SECTION 11.06
|
|
Securities Payable on Redemption Date
|
|
|
58
|
|
|
SECTION 11.07
|
|
Securities Redeemed in Part
|
|
|
59
|
|
|
|
|
ARTICLE TWELVE
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
SECTION 12.01
|
|
Applicability of Article
|
|
|
59
|
|
|
SECTION 12.02
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
59
|
|
|
SECTION 12.03
|
|
Redemption of Securities for Sinking Fund
|
|
|
60
|
|
|
|
|
ARTICLE THIRTEEN
|
|
|
|
|
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
SECTION 13.01
|
|
Company’s Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
60
|
|
|
SECTION 13.02
|
|
Legal Defeasance and Discharge
|
|
|
60
|
|
|
SECTION 13.03
|
|
Covenant Defeasance
|
|
|
61
|
|
|
SECTION 13.04
|
|
Conditions to Legal Defeasance or Covenant Defeasance
|
|
|
61
|
|
|
SECTION 13.05
|
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
|
|
63
|
|
|
SECTION 13.06
|
|
Reinstatement
|
|
|
64
|
|
-v-
INDENTURE, dated as of August 18, 2016, between CNH Industrial N.V., a public limited liability
company duly organized and existing under the laws of the Kingdom of the Netherlands (herein called the “
Company
”), and U.S. Bank National Association, a national banking association, as Trustee (in such capacity, 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 unsecured
debentures, notes or other evidences of indebtedness (each a “
Security
”) to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the 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 series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, 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;
(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; and
(5) 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 1.04.
“
Affiliate
” means with respect to any specified Person, any other Person who
directly or indirectly through one or more intermediaries controls, or is controlled by or is under common control with, such specified Person. The term “
control
” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“
Applicable Procedures
” of a Depositary means, with respect to any matter at any time, the policies and
procedures of such Depositary, if any, that are applicable to such matter at such time.
“
Authenticating Agent
” means any
Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“
Bankruptcy Law
” means Title 11, U.S. Code or any similar Federal, state or foreign law for the relief of debtors.
“
Board of Directors
” means either the board of directors of the Company or any duly authorized committee of that board.
“
Board Resolution
” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Governing Body of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close;
provided
that, when used with respect to any Security, “Business Day” may have such other
meaning, if any, as may be specified for such Security as contemplated by Section 3.01.
“
Capital Stock
” means
(1) with respect to any Person that is a Corporation, any and all shares of corporate stock of such Person;
(2) with respect to any Person that is an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated and whether or not voting) of corporate stock of such Person;
(3) with respect to any Person that is a
partnership or limited liability company, any and all partnership or membership interests (whether general or limited) of such Person; and
(4) with respect to any other Person, any other interest or participation that confers on a Person the right to receive a share of the
profits, losses of, or distributions of assets of, the issuing Person.
-2-
“
Commission
” means the Securities and Exchange Commission, as from time to time
constituted, or if at any time after the execution of this Indenture such Commission is not existing and performing the applicable duties now assigned to it, then the body or bodies performing such duties at such time.
“
Common Stock
” means the common stock, no par value per share, of the Company.
“
Company
” means the Person named as the “Company” in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“
Company Request
” or “
Company Order
” means a written request or order signed in the name of the Company by
the Chairman of the Board, the Chief Executive Officer or the Chief Financial Officer, and by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“
Corporate Trust Office
” means the corporate trust office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at 190 S. LaSalle Street, 10
th
Floor, MK-IL-SLTR, Chicago, Illinois 60603, Attn: Global Corporate Trust Services –
CNH Industrial N.V. Administrator.
“
Corporation
” means a corporation, association, company, limited liability company,
joint-stock company or business trust.
“
Covenant Defeasance
” has the meaning specified in Section 13.03.
“
Custodian
” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“
Default
” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both
with respect to which, would be, an Event of Default.
“
Defaulted Interest
” has the meaning specified in Section 3.07.
“
Depositary
” means, with respect to Securities of any series issuable in whole or in part in the form of one or more
Global Securities, any Person that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“
Event
of Default
” has the meaning specified in Section 5.01.
“
Exchange Act
” means the Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to time.
“
Expiration Date
” has the meaning
specified in Section 1.04.
“
generally accepted accounting principles
” means, unless otherwise specified in respect of a
series of Securities, such accounting principles as are generally accepted in the United States of America.
-3-
“
Global Security
” means a Security that evidences all or part of the Securities
of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“
Governing Body
” means, as to any Person, the board of directors, board of managers or other governing body of such Person or
any duly authorized committee thereof.
“
Holder
” means a Person in whose name a Security is registered in the Security
Register.
“
Indenture
” means this instrument as originally executed and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, 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 terms of particular series of Securities established as contemplated by Section 3.01.
“
interest
”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“
Interest Payment Date
”, when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
“
Investment Company Act
” means the Investment
Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“
Issue Date
” with
respect to a series of the Securities means the date of initial issuance of that series of Securities.
“
Legal
Defeasance
” has the meaning specified in Section 13.02.
“
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 or otherwise.
“
OECD Country
” means a country that is a member of the Organization for Economic Cooperation and Development or any successor
organization (or, to the extent that the Organization for Economic Cooperation and Development or a successor organization no longer exists, at the time the relevant organization ceased to exist).
“
Officer
” means, with respect to any Person, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting
Officer, any Chief Operating Officer, the General Counsel, the Secretary or any Assistant Secretary, the Treasurer or any Assistant Treasurer of such Person (and also includes, with respect to the Company, any other officer or officers of the
Company designated in writing (whether in addition to or in lieu of any of the foregoing) by or pursuant to authority of the Board of Directors).
-4-
“
Officers
’
Certificate
” means, with respect to any Person, a
certificate signed by any two of the following: the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, any Chief Operating Officer, the General Counsel, the Secretary or any Assistant Secretary, the Treasurer or any
Assistant Treasurer of such Person (or, with respect to the Company, any other officer or officers of the Company designated in writing (whether in addition to or in lieu of any of the foregoing) by or pursuant to authority of the Board of
Directors) that shall comply with applicable provisions of this Indenture. One of the Officers signing an Officers’ Certificate given pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Company.
“
Opinion of Counsel
” means a written opinion from legal counsel complying with the requirements of this Indenture who,
subject to any express provisions hereof, may be an employee of or counsel for the Company, and other counsel which is reasonably acceptable 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 5.02.
“
Outstanding
”,
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Legal Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 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 as of any date, (A) the principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be
-5-
the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the
principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section
3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the 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, 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 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.
“
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, firm, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other 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 as contemplated by Section 3.01.
“
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 3.06 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.
“
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.
“
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 as contemplated by Section 3.01.
-6-
“
Responsible Officer
”, when used with respect to the Trustee, any officer within
the Corporate Trust Office (or any successor group of the Trustee) including any vice president, assistant vice president or officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred at the Corporate Trust Office because of such person’s knowledge of and familiarity with the particular subject and in each case having direct responsibility for the
administration of this Indenture.
“
Securities Act
” means the Securities Act of 1933 and any statute successor thereto,
in each case as amended from time to time.
“
Security
” has the meaning stated in the first recital of this Indenture and
more particularly means any Security authenticated and delivered under this Indenture.
“
Security Register
” and
“
Security Registrar
” have the respective meanings specified in Section 3.05.
“
Special Record Date
” for
the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 3.07.
“
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 fixed date on which the principal of such Security or such installment of principal or interest is
due and payable.
“
Subsidiary
,” with respect to any Person, means
(1) any Corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of
directors or managers under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or
(2) any other
Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.
“
Trust Indenture Act
” or the “
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.
“
U.S. Government Obligations
” means (a) securities that are direct obligations of the United States of America for the
payment of which its full faith and credit are pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
-7-
of the United States of America, the full and timely 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 depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt;
provided
that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or a specific payment of principal or interest on any such
U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt.
“
Wholly-Owned
Subsidiary
” of any Person means a Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or
more Wholly-Owned Subsidiaries of such Person or by such Person and one or more Wholly-Owned Subsidiaries of such Person.
SECTION 1.02
Certificates and
Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates
provided for in Section 10.04) shall include,
(1) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
-8-
SECTION 1.03
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or 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.
SECTION 1.04
Acts of Holders; Record Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by 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 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The fact
and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
-9-
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.
The Company may, in the circumstances permitted by
the Trust Indenture Act, 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 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 1.06.
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 any Default of the character specified in Section 5.01(4) with respect to Securities of such series, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant
-10-
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 1.06.
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 in the manner set forth in Section 1.06, 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.
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.
SECTION 1.05
Notices, Etc., to Trustee and the 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 if made, given, furnished or filed in writing (including facsimile and electronic mail in PDF format) to or with the Trustee at its Corporate Trust Office (delivered in person or mailed by first class mail
(registered or certified, return receipt requested) or via overnight air courier guaranteeing next day delivery), via facsimile at Facsimile No.: 312-332-8008 or via electronic mail to
Linda.Garcia@usbank.com
, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing (including facsimile and electronic mail in PDF format) to or with the Company at CNH Industrial N.V., c/o CNH Industrial America LLC, 6900 Veterans Blvd., Burr Ridge, Illinois 60527,
Attention: Chief Compliance Officer and Corporate Secretary (delivered in person or mailed by first class mail (registered or certified, return receipt requested) or via overnight air courier guaranteeing next day delivery) or via facsimile at
Facsimile No.: 630-887-2344 or via electronic mail to
Michael.Going@cnhind.com
.
-11-
The Trustee and the Company, by notice to the other, may designate additional or different addresses for
subsequent notices or communications pursuant to this Section 1.05.
All notices and communications pursuant to this Section 1.05 shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile or electronic mail; and the
next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. For purposes of this Section 1.05, “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of Chicago are authorized or obligated by law or executive order to close.
SECTION 1.06
Notice to Holders; Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Notwithstanding anything herein to the contrary, where this Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice.
SECTION 1.07
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the 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, the provision of the
Trust Indenture Act shall be deemed to apply to this Indenture only as so modified or shall be excluded, as the case may be.
-12-
SECTION 1.08
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10
Separability Clause
.
In
case any provision in this Indenture or in the 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 1.11
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12
Governing
Law
.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR STATUTE). THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY
ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF, RELATING TO OR BASED ON THIS INDENTURE, THE SECURITIES OR ANY
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 1.13
Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in
the federal courts of the United States of America or the courts of the State of New York, in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address specified in or
pursuant to Section 1.05 above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or
other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
-13-
SECTION 1.14
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated 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 any Security which specifically states that such provision shall apply in lieu of this Section)) 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 or Redemption Date, or
at the Stated Maturity,
provided
that no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be to the date of such payment.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01
Forms Generally
.
The
Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution, Officers’ Certificate or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The
definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02
Form of Face of Security
.
[
Insert any legend required by the Internal Revenue Code and the regulations thereunder.
]
-14-
CNH Industrial N.V.
CUSIP No.
CNH INDUSTRIAL
N.V., a public limited liability company organized and existing under the laws of the Kingdom of the Netherlands (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
[
if this Security is to bear
interest prior to Maturity, insert
- , 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,
[
if applicable, insert
- provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of
[
%
]
per annum (to
the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand
]
. 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 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 so payable,
but not punctually paid or duly provided for, on any Interest Payment Date 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 Company, 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.
]
[
If the Security is not to bear interest prior to Maturity, insert
- The
principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at
the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment.
]
Payment of the principal of (and premium, if any) and
[
if applicable, insert
- 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, against surrender of this
-15-
Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date);
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; and
provided, further
,
that if this Security is a Global Security, payment may be made pursuant to the Applicable Procedures of the Depositary as permitted in said Indenture.
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.
SECTION 2.03
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, dated as of [ , ] (herein called the “
Indenture
”, which term
shall have the meaning assigned to it in such instrument), between the Company and [ ], as Trustee (herein called the
“
Trustee
”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture 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
[
if applicable, insert
– [initially] limited in aggregate principal amount to $ ] [,
provided
that the Company may, without the consent of any Holder, at any time and from time to time increase the initial
principal amount].
[
If applicable, insert
– The Securities of this series are subject to redemption upon not less than
30 days’ nor more than 60 days’ notice by mail,
[
if applicable, insert
– (1) on in any year
commencing with the year and ending with the year through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)
]
at any time
[
if applicable, insert
– on or after ,
20
]
, as a whole or in part, at the election of the Company, at the following Redemption Prices
-16-
(expressed as percentages of the principal amount): If redeemed
[
if applicable, insert
— on or before
, %, and if redeemed
]
during the 12-month period beginning
, of the years indicated,
|
|
|
|
|
|
|
|
|
Year
|
|
Redemption
Price For
Redemption
Through
Operation of the
Sinking Fund
|
|
Year
|
|
Redemption
Price For
Redemption
Otherwise Than
Through
Operation of the
Sinking Fund
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any
such redemption
[
(whether through operation of the sinking fund or otherwise)
]
with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.
]
[
If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by
[
if applicable, insert
— Clause (2)
of
]
the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than % per annum.
]
[
If applicable, insert
– The sinking
fund for this series provides for the redemption on in each year beginning with the year
and ending with the year of
[
if applicable, insert
– 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
[
if applicable, insert
– mandatory
]
sinking fund payments may be credited against subsequent
[
if applicable, insert
– mandatory
]
sinking fund payments otherwise required to be made
[
if applicable, insert
– , in the inverse order in which they become due
]
.
]
[
If the Security is subject to redemption of any kind, insert
– 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 applicable, insert
– The Indenture contains provisions for defeasance at any time of the entire indebtedness of the
Securities of this series or certain restrictive covenants with respect to the Securities of this series and Events of Default with respect to the Securities of this series, in each case upon compliance with certain conditions set forth in the
Indenture.
]
-17-
[
If the Security is not an Original Issue Discount Security, insert
– 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.
]
[
If the Security is an Original Issue Discount Security, insert
– 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 [–
insert 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.
]
The Indenture imposes certain limitations on, among other things, the Company’s ability to consolidate, merge, convey, transfer or lease
their respective properties and assets substantially as an entirety[
, add any other restrictive covenants provided for in the supplemental indenture for this series
]. Such limitations are subject to a number of important qualifications
and exceptions. The Company must annually report to the Trustee on compliance with such limitations.
Events of Default are set forth
in the Indenture. If an Event of Default (other than an Event of Default specified in Section 5.01(5) or (6)) shall occur and be continuing with respect to this series, the Trustee or the Holders of at least 25% in principal amount of
Outstanding Securities of this series may declare the principal of, premium, if any, and accrued interest on all of the Outstanding Securities of this series to be due and payable by notice in writing to the Company and (if given by the Holders) the
Trustee specifying the respective Events of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable;
provided, however
, that after such acceleration but before a judgment or decree
based on such acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Securities of this series may rescind and annul such acceleration and its consequences if all existing Events of
Default with respect to this series, other than the nonpayment of principal, premium, if any, or interest that has become due solely because of the acceleration, have been cured or waived. No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereto. In case an Event of Default specified in Section 5.01(5) or (6) of the Indenture occurs with respect to the Securities of this series and is continuing with respect to the Securities of
this series, such principal amount, together with premium, if any, and interest with respect to all of the Outstanding Securities of this series, shall be due and payable immediately without any declaration or other act on the part of the Trustee or
the Holders.
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 any series to be 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 affected. The Indenture also contains
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provisions (i) permitting the Holders of not less than a majority in principal amount of the Outstanding Securities of a series, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture with respect to such series and (ii) permitting the Holders of a majority in principal amount of the Outstanding Securities of a series to be affected under the Indenture (with
each such series considered separately for this purpose), on behalf of the Holders of all Securities of such series, to waive certain past defaults in respect of the Securities of such series 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.
When a successor entity assumes, in accordance with
the Indenture, all the obligations in respect of the Securities of this series of its predecessor under the Securities of this series and the Indenture, and immediately before and thereafter no Default with respect to this series or Event of Default
with respect to this series exists and certain other conditions are satisfied, the predecessor entity will be released from those obligations.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default
as Trustee and offered the Trustee indemnity reasonably satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
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 his 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.
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The Securities of this series are issuable only in registered form without coupons in
denominations of $[1,000] and any integral multiple 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.
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, 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.
[
If applicable, insert
- This Security is a Global Security and is subject to the provisions of the Indenture relating to Global
Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.
]
[
If
applicable, insert
- Interest on the principal balance of this Security shall be calculated on the basis of a
[
365- or 366-day year, as appropriate, for the actual number of days elapsed
] [
360-day year of twelve 30-day
months
]]
Each Holder, by accepting a Security, agrees to be bound by all of the terms and provisions of the Indenture, as the same
may be amended from time to time.
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to: CNH Industrial N.V., c/o CNH Industrial America LLC, 6900 Veterans Blvd., Burr Ridge, IL 60527, Attention: Chief Compliance Officer and Corporate Secretary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR STATUTE). EACH OF THE PARTIES TO THE INDENTURE HAS AGREED TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
OF THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA AND THE COURTS OF THE STATE OF NEW YORK, IN EACH CASE LOCATED IN THE CITY OF NEW YORK, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, RELATING TO OR BASED ON THE INDENTURE, THIS NOTE OR ANY
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF, RELATING TO OR BASED ON THE INDENTURE, THIS SECURITY OR ANY TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
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All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 2.04
Form of Legend for Global Securities
.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in
the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture.
SECTION 2.05
Form of Trustee
’
s Certificate of Authentication
.
The Trustee’s certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned
Indenture.
Dated:
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U.S. Bank National Association,
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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 3.01
Amount
Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board
Resolution and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any
other series);
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(2) 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 3.04, 3.05,
3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) 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;
(4) the date or dates on which the principal of any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable
and the manner in which any payment may be made;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities
shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of
principal of or any premium or interest on any Securities of the series may be determined with reference to an index, a financial or economic measure or pursuant to a formula, the manner in which such amounts shall be determined;
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(11) if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose,
including for the purposes of making payment in the currency of the United States of America and for purposes of applying the definition of “Outstanding” in Section 1.01;
(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 the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series
which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(14) if the
principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of
any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, shall be subject to either or both of Legal Defeasance or Covenant
Defeasance as provided in Article Thirteen;
provided
that no series of Securities that is exchangeable for Common Shares or other securities pursuant to Section 3.01(19) shall be subject to Legal Defeasance pursuant to Section 13.02;
(16) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any addition to,
elimination of or other changes in the circumstances set forth in Clause (2) of the last paragraph of Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(17) any addition to, elimination of or other change in the Events of Default which applies to any Securities of the series and
any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
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(18) any addition to, elimination of or other change in the covenants set forth
in Article Ten which applies to Securities of the series;
(19) the terms and conditions, if any, pursuant to which the
Securities are exchangeable for Common Stock or other securities; and
(20) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the
Officers’ Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at one time and, unless otherwise provided or contemplated by this Section 3.01 with respect to a series
of Securities, additional Securities of a series may be issued at the option of the Company, without the consent of any Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
SECTION 3.02
Denominations
.
The
Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by the Chairman, the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or any Assistant Treasurer of the Company (or any other officer of the Company designated in writing (whether in addition to or in lieu of any of the foregoing) by or pursuant to
authority of the Board of Directors), and attested by the Secretary, one of the Assistant Secretaries or another authorized Person of the Company. 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.
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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 such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that
such form has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities
have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(3) 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.
If
such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will 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 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, including where the size of an Outstanding series of Securities is increased as contemplated by Section 3.01, it shall
not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the
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Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, 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 3.04
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, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, 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 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 upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. 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 in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05
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 and 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 of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the
Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, 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, the Securities which the Holder making the exchange is entitled to receive.
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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 or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to
issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be
specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security or
(B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) the Company so directs the Trustee by Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu
of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
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(3) Subject to Clause (2) above and to such applicable provisions, if any, as may
be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such
names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 3.06
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and
payable, the 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 relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07
Payment of Interest; Interest Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the
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 Company shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee
of such Special Record Date and, in the name and at the expense of the Company, shall cause the Trustee to provide 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 1.06, 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).
(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.
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Except as may be provided in this Section 3.07 or as contemplated in Section 3.01 with respect to
any Securities of a series, the Person to whom interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid.
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 3.08
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 3.07) 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 3.09
Cancellation
.
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 and shall be promptly
cancelled by it. 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 cancelled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company
Order;
provided, however
, that the Trustee shall not be required to destroy such cancelled Securities.
SECTION 3.10
Computation of
Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders,
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of any Security expressly provided for herein or in the terms of such Security), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all
such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose, money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 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 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02
Application of Trust Money
.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 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 any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01
Events of Default
.
“
Event of Default
”, with respect to the Securities of a 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 governmental body):
(1) the failure to pay interest on any Security of that series when the same becomes due and payable and such default
continues for a period of 30 days; or
(2) the failure to pay the principal of any Security of that series, when such
principal becomes due and payable, at Maturity, upon redemption or otherwise and such default continues for a period of 14 days; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4) a default in the observance or performance of any other covenant or agreement contained in this Indenture in respect of the
Securities of that series which default continues for a period of 60 days after the Company receives written notice specifying the default from the Trustee or the Holders of at least 25% of the Outstanding principal amount of the Securities of that
series (except in the case of a default with respect to Section 8.01 which will constitute an Event of Default in respect of the Securities of that series with such notice requirement but without such passage of time requirement); or
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(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
(v) makes an admission in writing of its inability to pay its debts generally as they become due, or
(vi) takes any corporate action to authorize or effect any of the foregoing; or
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company for all or substantially all of the property of the Company, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided with respect to Securities of that series.
SECTION 5.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default (other than an Event of Default specified in Section 5.01(5) or (6)) with respect to the Securities of a series shall
occur and be continuing with respect to the Securities of that series, the Trustee or the Holders of at least 25% in principal amount of Outstanding Securities of that series may declare the principal of, premium, if any, and accrued interest on all
the Outstanding Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable
immediately by notice in writing to the Company and (if given by the Holders of the Securities of that series) the Trustee specifying the respective Events of Default and that it is a “notice of acceleration,” and the same shall become
immediately due and payable. If an Event of Default specified in Section 5.01(5) or (6)
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occurs with respect to the Securities of that series and is continuing with respect to the Securities of that series, then all unpaid principal of, premium, if any, and accrued and unpaid
interest on all of the Outstanding Securities of that series shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. After any such acceleration specified in this
Section 5.02 but before a judgment or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series may rescind and annul such acceleration if:
(1) the rescission would not conflict with any judgment or decree;
(2) all existing Events of Default with respect to the Securities of that Series, other than nonpayment of principal or
interest that has become due solely because of the acceleration, have been cured or waived;
(3) to the extent the payment
of such interest is lawful, interest on overdue installments of interest and overdue principal on the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof), which has become due otherwise than by such declaration of acceleration, has been paid; and
(4) the Company has paid the Trustee for the Securities of that series its reasonable compensation and reimbursed the Trustee
for its expenses, disbursements and advances; and
(5) in the event of the cure or waiver of an Event of Default of the
type described in Section 5.01(5) or (6) above for the Securities of that series, the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 5.03
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if
(1) default is made in the payment of any 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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Security, the whole amount then due and payable on such Security 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 Security, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
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expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon
such Security 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 Security, 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 most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture with respect to such series of Securities or in aid of the exercise of any power granted herein, or to enforce any other proper remedy with respect to such series of Securities.
SECTION 5.04
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 or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No
provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors’ or other similar committee.
SECTION 5.05
Trustee May Enforce Claims Without Possession of
Securities
.
All rights of action and claims with respect to a series of the Securities under this Indenture or such series of
Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities of such series 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 such Securities in respect of which such judgment has been recovered.
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SECTION 5.06
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article with respect to a series of the Securities 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 with respect to a Security, upon presentation of such Security 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 6.07 with respect to such series of Securities; and
SECOND: To the payment of the amounts then due and
unpaid for principal of and any premium and interest on such Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively.
SECTION 5.07
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that 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 reasonably 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 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 of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all of such Holders.
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SECTION 5.08
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 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09
Restoration of
Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10
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 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities of a series to exercise any right or remedy accruing upon any Event of
Default with respect to that series 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 with respect to a series given by this Article or by law to the Trustee
or to the Holders of the Securities of such series may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of the Securities of such series, as the case may be.
SECTION 5.12
Control by Holders
.
The
Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided
that
(1) such direction shall not
be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
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SECTION 5.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(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 Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14
Undertaking for Costs
.
In
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs 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 Trustee or the Company.
SECTION 5.15
Waiver of
Usury, 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 usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and
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.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01
Certain Duties and
Responsibilities
.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, 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 security or indemnity against such risk or liability is not reasonably assured to it. In addition, except during the continuance of an Event of Default with
respect to the Securities of a series, the Trustee need perform only those duties as are specifically set forth in the Indenture relating to the Securities of that series, and no covenants or obligations shall be implied in this Indenture against
the Trustee. If an Event of Default has occurred and is continuing and has not been waived, 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
thereof as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02
Notice of Defaults
.
The Trustee shall not be deemed to have notice of any Default with respect to a series of the Securities or Event of Default with respect to a
series of the Securities unless a Responsible Officer of the Trustee has received written notice of such Default or Event of Default by the Company or by the Holders of at least 25% of the aggregate principal amount of the Outstanding Securities of
that series at the Corporate Trust Office of the Trustee.
Within 90 days after the occurrence of any Default with respect to a series of
the Securities hereunder or Event of Default with respect to a series of the Securities hereunder, the Trustee shall transmit by mail to Holders of that series of Securities, as their names and addresses appear in the Security Register, a notice of
the Default or Event of Default known to the Trustee, unless such Default or Event of Default shall have been cured or waived;
provided
,
however
, that in the case of any Default of the character specified in Section 5.01(4) with
respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. Except in the case of a Default or an Event of Default in payment of principal of, premium or interest on, any
Security, including an accelerated payment and, except in the case of a failure to comply with Article 8 hereof, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding the notice is
in the interest of such Holders. This Section 6.02 shall be in lieu of the proviso to Section 315(b) of the TIA, and such proviso of Section 315(b) of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
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SECTION 6.03
Certain Rights of Trustee
.
Subject to the provisions of Section 6.01:
(1) the Trustee may 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 believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture in respect
of a series of the Securities at the request or direction of any of the Holders of the Securities of such series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
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(9) 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;
(10) the Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by any individual authorized to sign an Officers’ Certificate, including any individual specified
as so authorized in any such certificate previously delivered and not superseded;
(11) the permissive right of the Trustee
to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(12) the Trustee shall not
be responsible or liable for punitive, 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 actions.
SECTION 6.04
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 the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof or any money paid to the Company pursuant to the terms of this Indenture. The Trustee shall have no
responsibility or liability with respect to any information, statement or recital in any offering memorandum, prospectus, prospectus supplement or other disclosure material prepared or distributed with respect to the issuance of any Securities
hereunder. Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
SECTION 6.05
May Hold Securities
.
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 6.08 and 6.13, 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.
SECTION 6.06
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
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SECTION 6.07
Compensation and Reimbursement
.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in
writing 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 may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and all loss, liability or reasonable expense, including reasonable attorneys’ fees and expenses and taxes (other than taxes imposed on the income of the Trustee), incurred without
negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the
Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder; provided that the Company need not pay for any settlement made without its consent, which consent shall not
be unreasonably withheld.
The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any
amount owing it or any predecessor Trustee pursuant to this Section 6.07 except with respect to funds held in trust for the benefit of the Holders of particular Securities. When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(5) or Section 5.01(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 termination of
this Indenture and the resignation and removal of the Trustee.
SECTION 6.08
Disqualification; Conflicting Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
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SECTION 6.09
Corporate Trustee Required; Eligibility
.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of any one series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee 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 $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 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 6.10
Resignation and Removal; Appointment of Successor
.
No resignation or removal of the Trustee with respect to a series of the
Securities 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 6.11.
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.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.09 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,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security 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 and the appointment of a successor Trustee or Trustees.
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If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the Trustee resigning or 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.
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 a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 6.11. 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 6.11, 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 and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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 1.06. 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 6.11
Acceptance of Appointment by Successor
.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the 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.
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
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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.
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 the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12
Merger, Conversion, Consolidation or Succession to Business
.
Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided
such
Corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion 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.
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SECTION 6.13
Preferential Collection of Claims Against the Company
.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
SECTION 6.14
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents 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 3.06, and
Securities so authenticated shall be entitled to the benefits of this 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 by the Trustee 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 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 $50,000,000 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 the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an 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 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, the Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance
of its appointment
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hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time such compensation for its services under this Section as the Company and the Authenticating Agent shall from time to time agree in writing.
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 the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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U.S. Bank National Association,
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As Trustee
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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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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
SECTION 7.01
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than February 15 and August 15 in each year (commencing in 2017), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding February 1 or August 1, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list
names and addresses received by the Trustee in its capacity as Security Registrar.
SECTION 7.02
Preservation of Information; Communications to
Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
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Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the 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 information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.03
Reports by Trustee
.
The
Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted within 60 days after the date hereof and on each anniversary of such date.
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 will promptly notify the Trustee when any Securities are listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01
Limitation on Merger, Consolidation, Conveyance, Transfer or Lease
.
(1) With respect to any series of the Securities, the Company shall not consolidate with or merge into any other Person or
convey, transfer or lease all or substantially all of its properties and assets to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease all or substantially all of its
properties and assets to the Company, unless:
(A) (i) the Company shall be the surviving or continuing Corporation or (ii)
the Person formed by such consolidation or with or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company shall be a Person
organized and validly existing under the laws of any OECD Country, the United States of America, any State thereof or the District of Columbia and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Outstanding Securities of such series and the performance or observance of every covenant of this Indenture in respect of the
Securities of such series and any related supplemental indenture on the part of the Company to be performed or observed;
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(B) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary of the Company as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Default in respect of the Securities
of such series or Event of Default in respect of the Securities of such series shall have occurred and be continuing;
(C)
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, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Indenture and that all conditions precedent herein provided for relating to such transaction have been complied with.
(2) For purposes of the foregoing, the conveyance, transfer or lease of all or substantially all of the properties or assets of
one or more Subsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company;
provided that
the provisions of this Section 8.01 will not apply to a conveyance, transfer or lease of properties or assets of one or more Subsidiaries of the Company exclusively to the Company and/or one or more Wholly-Owned Subsidiaries of
the Company.
SECTION 8.02
Successor Substituted
.
Upon any consolidation of the Company with, or merger of the Company with or into, any other Person or any conveyance, transfer or lease of
all or substantially all of the properties and assets of the Company in accordance with Section 8.01, 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 in the event of any such conveyance, transfer
or lease, the Company (which term shall for this purpose mean the Person named as the Company or any successor Corporation which shall have theretofore become such in the manner prescribed above) shall be discharged from all liability under this
Indenture in respect of the Securities of such series and in respect of the Securities of such series, and may be dissolved and liquidated.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION
9.01
Without Consent of Holders
.
With respect to the Securities of a series, the Company and the Trustee may amend or supplement
this Indenture or the Securities of such series without notice to or consent of any Holder:
(1) to cure any ambiguity,
defect or inconsistency;
provided
that such amendment or supplement does not, in the opinion of the Company, adversely affect the rights of any Holder of the Securities of such series in any material respect;
(2) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(3) to comply with Article 8 hereof;
(4) to comply with any requirements of the Commission in order to effect or maintain the qualification of this Indenture under
the TIA;
(5) to make any change that would provide any additional benefit or rights to the Holders;
(6) to add to the covenants of the Company for the benefit of the Holders of such series of Securities, or to surrender any
right or power herein conferred upon the Company;
(7) to make any other change that in the opinion of the Company does not
materially and adversely affect the rights of any Holder under this Indenture in respect of such series of Securities;
(8)
to add to, change or eliminate any of the provisions of this Indenture in respect of such series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such prior Security with respect to such provision or (B) shall become effective only when there is no such prior
Security Outstanding;
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of such series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or
(10) to establish the form or terms of Securities of such series as permitted by Sections
2.01 and 3.01.
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SECTION 9.02
With Consent of Holders
.
With respect to the Securities of a series, subject to Section 5.08 hereof, the Company, when authorized by a Board Resolution of its Boards
of Directors, and the Trustee may amend or supplement this Indenture in respect of such series of Securities or the Securities of such series with the Act of the Holders of at least a majority in principal amount of the Outstanding Securities of
such series. Subject to Section 5.08 hereof, the Holders of a majority in principal amount of the Outstanding Securities of such series may waive compliance by the Company with any provision of this Indenture in respect of such series of Securities
or the Securities of such series. However, with respect to each series of Securities, without the consent of each Holder of that series who is affected, an amendment, supplement or waiver, including a waiver pursuant to Section 5.13 hereof, may not:
(1) reduce the percentage in principal amount of Outstanding Securities of that series whose Holders must consent to an
amendment, supplement or waiver, or consent to take any action under this Indenture or the Securities of that series;
(2)
reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on that series of Securities;
(3) reduce the principal of, or change or have the effect of changing the fixed maturity of, that series of Securities, or
change the date on which Securities of that series may be subject to redemption or repurchase, or reduce the redemption or repurchase price therefor;
(4) make any Security of that series payable in a currency other than that stated in the Security;
(5) make any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of,
premium, if any, and interest on that series of Securities on or after the stated due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Securities of that series to
waive Defaults with respect to that series of Securities or Events of Default with respect to that series of Securities; or
(6) modify or change any provision of this Indenture or the related definitions affecting the ranking of the Securities of that
series in a manner which adversely affects the Holders of that series.
After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the Holders of each series of Securities affected by such amendment, supplement or waiver a notice briefly describing the amendment, supplement or waiver. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid and upon receipt by the Trustee of the documents described in Section 9.03
hereof, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the Act of the Holders
under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
SECTION 9.03
Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and that such amendment, supplement or waiver constitutes the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms (subject to customary exceptions). The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04
Revocation and Effect of Consents
; Effect of Amendments and Supplemental Indentures
.
Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder’s Security or portion of such Security by notice to the Trustee or the Company received before the date on which the Trustee receives an Officers’ Certificate certifying that the
Holders of the requisite principal amount of the Outstanding Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
After an amendment, supplement or waiver becomes effective as to a series of Securities, it shall bind every Holder of Securities of that
series.
Upon the execution of any amendment supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such amendment or supplemental indenture shall form a part of this Indenture for all purposes.
SECTION 9.05
Conformity with TIA
.
Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA as then in effect.
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SECTION 9.06
Reference in Securities to Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any amendment or 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 amendment or 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 amendment or 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.
ARTICLE TEN
COVENANTS
SECTION 10.01
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 any
premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 10.02
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 made or given. 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 given 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.
With respect to any Global
Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.01, the Corporate Trust Office of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for
payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor,
provided, however
, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable
Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
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SECTION 10.03
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 or any premium 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 any premium and interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 13.04(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, 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) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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 then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the 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, 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
,
however
, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English language,
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customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04
Statement by Officers as to Default
.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.05
Existence
and Maintenance of Properties
.
Subject to Article Eight, the Company will at all times do or cause to be done all things necessary to preserve and keep in full force and
effect its public limited liability company existence and its rights and franchises; provided, that nothing in this Section 10.05 shall prevent the abandonment or termination of any right or franchise of the Company if, in the opinion of the
Company, such abandonment or termination is in the best interests of the Company and does not materially adversely affect the ability of the Company to fulfill its obligations hereunder.
SECTION 10.06
Waiver of Certain Covenants
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of a specific series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(18), 9.01(6) or 9.01(10) for the benefit of the Holders of such series, in Article
Eight or in Sections 10.05, 10.07 and 10.08, if before 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 term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 10.07
Calculation of Original Issue Discount
.
The Company shall file with the Trustee promptly at the end of each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year, but only if as of the end of such year Securities issued at an original issue discount are then Outstanding for which reporting to
Holders is required.
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SECTION 10.08
Payments for Consent
.
With respect to the Securities of any series, the Company shall not, and shall not cause or permit any Subsidiary to, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of the Securities of such series for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture
applicable to the Securities of such series or the Securities of such series unless such consideration is offered to be paid to all Holders of the Securities of such series who so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or amendment.
SECTION 10.09
Reports by the 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 Exchange Act shall be filed with the Trustee within 30 days after the same is actually filed with the Commission. The Company shall be deemed to have furnished such information, documents or reports to the Trustee,
the Holders of the Securities of such series and/or prospective purchasers of the Securities of such series, if the Company has filed such information, documents or reports with the Commission via the EDGAR filing system (or any successor system)
and/or posted such information, documents or reports on the Company’s website and such information, documents or reports are publicly available. The Trustee shall have no obligation to determine whether or not such information, documents
or reports have been filed through the EDGAR filing system (or such successor thereto) or posted on the Company’s website.
Delivery
to the Trustee of any such reports, certificates, information or documents or any annual reports, information, documents and other reports pursuant to Section 314(a) of the Trust Indenture Act 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 compliance by the Company with any of its covenants with respect to such
series hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
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SECTION 11.02
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with such restriction.
SECTION 11.03
Selection of Securities to Be Redeemed
.
In the event that less than all of the Securities of any series are to be redeemed at any time, and the Securities are Global Securities, the
particular Securities to be redeemed shall be selected by the Depositary in accordance with the Applicable Procedures. If the particular Securities to be redeemed are not Global Securities, selection of the Securities to be redeemed shall be made by
the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed or, if such Securities are not then listed on a national securities exchange, on a
pro rata
basis, by
lot or by such method as the Trustee shall deem fair and appropriate;
provided, however
, that no Securities of a principal amount of $1,000 or less shall be redeemed in part. A new Security in a principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon delivery of the original Security to the Paying Agent and cancellation of the original Security (or transferred by book entry).
The Depositary or Trustee, as applicable, shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions
of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
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SECTION 11.04
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register, with a copy to the Trustee and any Paying Agent.
All notices of redemption shall identify the Securities to be redeemed, including CUSIP number, if any, and shall state:
(1) the Redemption Date,
(2) the Redemption Price (or manner of calculation if not then known),
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price, 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 made to the Trustee at least 35 days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), by the Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 11.05
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide
otherwise) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06
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
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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, if applicable, with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the
provisions of Section 3.07.
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 11.07
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 his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a “
mandatory sinking fund payment
”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “
optional sinking fund
payment
”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 12.02
Satisfaction of Sinking Fund Payments with Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of
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such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03
Redemption of Securities for Sinking Fund
.
Not less than 60 days (or such shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30
nor more than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01
Company
’
s Option to Effect Legal Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any series of Securities, as the case may
be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in
this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
SECTION 13.02
Legal Defeasance and Discharge
.
Subject to Section 3.01(15), upon the Company’s exercise of its option (if any) to have this Section applied to any series of Securities,
the Company in respect of the Securities of such series shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are
satisfied (hereinafter called “
Legal Defeasance
”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have
satisfied all of 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
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same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund
described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Company’s obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this
Section applied to any series of Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.
SECTION 13.03
Covenant Defeasance
.
Upon
the Company’s exercise of its option (if any) to have this Section applied to any series of Securities, (1) the Company in respect of the Securities of such series shall be released from its obligations under Article 8 and Sections 10.05 and
10.08, and any covenants provided pursuant to Section 3.01(18), 9.01(6) or 9.01(10) for the benefit of the Holders of such Securities, (2) the occurrence of any event specified in Sections 5.01(4) in respect of the Securities of such series (with
respect to Article 8 and Sections 10.05 and 10.08, and any covenants provided pursuant to Section 3.01(18), 9.01(6) or 9.01(10) for the benefit of the Holders of such Securities) shall be deemed not to be or result in an Event of Default
with respect to such series and (3) subject to the satisfaction of the conditions set forth in Section 13.04 hereof, Section 5.01(4) hereof shall not constitute an Event of Default with respect to such Series, in each case (1), (2) and (3) with
respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied in respect of the Securities of such series (hereinafter called “
Covenant Defeasance
”). For this
purpose, such Covenant Defeasance means that, with respect to such Securities, the Company in respect of the Securities of such series may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in
any such Article or Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Article or Section or by reason of any reference in any such Article or Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 13.04
Conditions to Legal Defeasance or
Covenant Defeasance
.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to a series of
Securities, as the case may be:
(1) The Company must irrevocably deposit with the Trustee (or other qualifying trustee),
in trust, for the benefit of the Holders of the Securities of such series, cash or U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants selected by the Company, expressed in a written certification to the Trustee, to pay the principal of, premium, if any, and interest on the Securities of such series on the scheduled due dates or on the
applicable Redemption Date, if any, as the case may be,
provided
that the Trustee shall have received an irrevocable written order from the Company instructing the Trustee to apply such cash or the proceeds of such U.S. Government Obligations
to said payments with respect to such Securities.
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(2) In the case of an election under Section 13.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the relevant Issue Date in
respect of the Securities of such series, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, Legal Defeasance and discharge 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 Legal Defeasance had not occurred.
(3) In the case of an election under Section 13.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel confirming that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, Covenant Defeasance
and discharge 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.
(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be delisted as a result of such deposit.
(5) No Default in
respect of the Securities of such series or Event of Default in respect of the Securities of such series shall have occurred and be continuing on the date of such deposit or insofar as Sections 5.01(5) and 5.01(6) hereof are concerned, at any time
in the period ending on the 91st day after the date of such deposit.
(6) Such Legal Defeasance or Covenant Defeasance
shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities of such series are in default within the meaning of such Act).
(7) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of or constitute a default under
this Indenture in respect of the Securities of such series or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound.
(8) The Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of such series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others.
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(9) Such Legal Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(10) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent (other than, in the case of such Opinion of Counsel, paragraph (6) above as to which such counsel need not express an opinion) provided for or relating to such Legal Defeasance or such Covenant Defeasance have been complied
with.
(11) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day
following the deposit and assuming that no Holder of the Securities of such series is an “insider” with respect to the Company, as that term is defined in Section 101 of title 11, United States Bankruptcy Code (the “
Bankruptcy
Code
”), the cash or securities deposited in trust will not be subject to avoidance and repayment under Sections 547 and 550 of the Bankruptcy Code.
SECTION 13.05
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
.
Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “
Trustee
”) pursuant to Section 13.04 in
respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the 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 any premium and interest, but money so held in trust 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 U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article 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 13.04 with respect to any Securities 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 the Legal Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
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SECTION 13.06
Reinstatement
.
Subject to applicable law, if the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article;
provided
,
however
, that if the Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed an original, but all such
counterparts shall together constitute but one and the same instrument.
[
Signature pages follow
]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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CNH INDUSTRIAL N.V.
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By:
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/s/ Massimiliano Chiara
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Name:
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Massimiliano Chiara
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Title:
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Chief Financial Officer
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[Signature Page to CNH
Industrial Indenture]
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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/s/ Linda Garcia
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Name:
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Linda E. Garcia
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Title:
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Vice President
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[Signature Page to CNH
Industrial Indenture]
Exhibit 4.2
CNH Industrial N.V.
4.50% Notes
due 2023
Officers’ Certificate
August 18, 2016
Pursuant to the
Indenture, dated as of August 18, 2016 (the “
Indenture
”), by and between CNH Industrial N.V. (the “
Company
”) and U.S. Bank National Association, as Trustee (the “
Trustee
”), this Officers’
Certificate is being delivered to the Trustee to establish the terms of a series of Securities in accordance with Section 3.01 of the Indenture and to establish the form of the Securities of such series in accordance with Section 2.01 of the
Indenture.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
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A.
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Establishment of series pursuant to Section 3.01 of the Indenture.
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There is hereby
established, pursuant to Section 3.01 of the Indenture, a series of Securities which shall have the following terms:
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(1)
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The Securities of this series issued pursuant to this Officers’ Certificate shall bear the title “4.50% Notes due 2023” (the “
Notes
”).
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(2)
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The aggregate principal amount of the Notes to be issued pursuant to this Officers’ Certificate shall be limited to $600,000,000 (except for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture and except for any Notes which, pursuant to Section 3.03 of the Indenture, are deemed never to have been authenticated and delivered
thereunder). The Company may from time to time, without the consent of any Holder of the Notes, create and issue additional Notes (the “
Additional Notes
”) having the same terms and conditions as the Notes in all respects, except for
the issue date, issue price and, under some circumstances, the first payment of interest thereon. Such Additional Notes, at the Company’s determination and in accordance with the provisions of the Indenture, will be consolidated with and
form a single series with the previously outstanding Notes for U.S. federal income tax purposes and for all purposes under the Indenture, including, without limitation, amendments, waivers and redemptions. The aggregate principal amount of the
Additional Notes, if any, shall be unlimited.
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(3)
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Interest will be payable to the Person in whose name a Note is registered at the close of business on the Regular Record Date (as defined below) for the Notes next preceding each Interest Payment Date (as defined below)
for the Notes;
provided, however
, that interest payable on the Stated Maturity of the Notes shall be payable to the Person to whom principal shall be payable.
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(4)
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The Stated Maturity of the principal of the Notes shall be August 15, 2023.
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(5)
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The Notes shall bear interest at the rate of 4.50% per annum (computed based upon a 360-day year consisting of twelve
30-day
months).
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The Notes shall bear interest from and including August 18, 2016, or from and including the most recent Interest Payment Date to which interest
on the Notes has been paid or duly provided for, as the case may be, payable semiannually in arrears in cash on February 15 and August 15 of each year, commencing on February 15, 2017, until the principal thereof is paid or made available
for payment. Each such February 15 or August 15 shall be an “
Interest Payment Date
” for the Notes, and each February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding an Interest
Payment Date for the Notes shall be the “
Regular Record Date
” for the interest payable on the Notes on such Interest Payment Date.
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(6)
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The principal of, any Redemption Price and the interest on the Notes shall be payable at the Corporate Trust Office of the Trustee, at 190 S. LaSalle Street, 10
th
Floor, MK-IL-SLTR, Chicago, Illinois 60603, Attn: Global Corporate Trust Services – CNH Industrial N.V. Administrator.
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(7)
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The Notes shall be redeemable, at the Company’s option, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 101% of the principal amount of the Notes to be redeemed
or (ii) the sum of the present values of the remaining scheduled payments of principal, premium and interest (excluding accrued but unpaid interest to the redemption date) on the Notes to be redeemed to the maturity date thereof, discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at the Applicable Treasury Rate plus 50 basis points, plus in each case unpaid interest, if any, accrued to, but excluding, such redemption date (a
“
Make-Whole Redemption
”).
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“
Applicable Treasury Rate
” for any Make-Whole Redemption Date,
means the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has
become publicly available at least two Business Days prior to the Make-Whole Redemption Date of such Note (or, if such Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the Make-Whole Redemption Date to August 15, 2023;
provided
,
however
, that if the period from the Make-Whole Redemption Date to August 15, 2023 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given except that if the period from the Make-Whole Redemption Date to August 15, 2023 is less than one year, the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used. The Company shall determine the Applicable Treasury Rate and the Trustee shall have no responsibility to determine or verify the same.
“
Make-Whole Redemption Date
” with respect to a Make-Whole Redemption, means the date such Make-Whole Redemption is effected.
In the event that less than all of the Notes are to be redeemed at any time, subject to applicable procedures of the Depositary with
respect to Global Securities, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then
listed on a national securities exchange, on a
pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided
that no Notes of a principal amount of $1,000 or less shall be redeemed in part.
Notice of a Make-Whole Redemption shall be mailed at least 30 but not more than 60 days before the Make-Whole Redemption Date to each Holder to
be redeemed at its registered address or otherwise delivered to each Holder in accordance with the applicable procedures of the Depositary. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note shall state
the portion of the principal amount thereof to be redeemed. A Note in a principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note (or through book-entry transfer
for any Global Securities). On and after the Make-Whole Redemption Date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the
applicable Redemption Price pursuant to the Indenture.
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(8)
|
Upon the occurrence of a Change of Control Triggering Event, each Holder will have the right to require that the Company purchase all or a portion of such Holder’s Notes pursuant to the offer described below (the
“
Change of Control Offer
”), at a purchase price equal to 101% of the principal amount thereof plus accrued interest, if any, thereon to, but excluding, the date of purchase (the “
Change of Control Payment
”).
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“
Change of Control Triggering Event
” means the occurrence of both a Change of Control and a Rating Decline.
“
Change of Control
” means the occurrence of an event described in clause (A) or (B) below after the Issue Date:
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(A)
|
the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act), other
than one or more Permitted Holders, becomes the beneficial owner, directly or indirectly, of more than 50 percent of the Voting Stock of the Company measured by voting power rather than number of shares; or
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(B)
|
the stockholders of the Company approve any plan of liquidation or dissolution of the Company, other than in connection with a merger, consolidation or other form of combination (while the Company is solvent) with
another company where such company assumes all obligations of the Company under the Notes and where such merger, consolidation or other combination does not have the effect of or result in an event described in clause (A) above.
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“
Permitted Holder
” means (i) Exor S.p.A. and any other person under the control of Giovanni Agnelli e C. S.a.p.az. and
their successors, (ii) each of the owners and beneficial holders of interests in Giovanni Agnelli e C. S.a.p.az. (at the Issue Date and each of their spouses, heirs, legatees, descendants and blood relatives to the third degree), or
(iii) Giovanni Agnelli e C. S.a.p.az. Any person or group whose acquisition of assets or beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of the
covenant described under this paragraph (8) (or would result in a Change of Control Offer in the absence of the waiver of such requirement by holders) will thereafter constitute an additional Permitted Holder.
“
Rating Decline
” means the occurrence on any date within the 60-day period following the occurrence of the event specified in
clauses (A) or
(B) of the definition of a “Change of Control” (which period shall be extended so long as during such period any rating of the Notes is under publicly announced consideration for
possible downgrade by a Rating Agency; provided that such extension shall not be for more than 30 days) of: (i) in the event the Notes are rated by any Rating Agency on the Rating Date below Investment Grade, the rating of the Notes by such Rating
Agency within such period being at least one rating category below the rating of the Notes by such Rating Agency on the Rating Date, (ii) in the event the Notes are rated by any Rating Agency on the Rating Date as Investment Grade, the rating of the
Notes within such period by such Rating Agency being (1) at least two rating categories below the rating of the Notes by such Rating Agency on the Rating Date or (2) below Investment Grade or (iii) the Notes not being rated by any Rating Agency. In
determining how many rating categories the rating of the Notes has decreased, gradation will be taken in account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, or from BB to BB-, will constitute a decrease of one rating
category).
“
Rating Agencies
” mean Moody’s Investors Service, Inc., or any successor thereto
(“
Moody’s
”) and Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., or any successor thereto (“
S&P
”); provided that if S&P, Moody’s or any Successor Rating Agency (as defined
below) shall cease to be in the business of providing rating services for debt securities generally, the Company shall be entitled to replace any such Rating Agency or Successor Rating Agency, as the case may be, which has ceased to be in the
business of providing rating services for debt securities generally with a security rating agency which is in the business of providing rating services for debt securities generally and which is nationally recognized in the United States (such
rating agency, a “
Successor Rating Agency
”).
“
Rating Date
” means the date which is 60 days prior to the
date of the public notice by the Company or another person seeking to effect a Change of Control of an arrangement that, as determined in good faith by the Company, is expected to result in a Change of Control.
“
Investment Grade
” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB– (or the
equivalent) by S&P or an equivalent rating by any Successor Rating Agency.
Within 30 days following the date upon which the Change of
Control Triggering Event occurs, the Company must send, by first-class mail, or otherwise deliver in accordance with the applicable procedures of the Depositary, a notice to each Holder of the Notes, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control
Offer. Such notice shall state, among other things, the purchase date, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed or sent
(the “
Change of Control Payment Date
”). Holders electing to have their Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Company will, to the extent lawful:
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•
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accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
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|
|
•
|
|
deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
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|
•
|
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deliver or cause to be delivered to the Trustee the Notes properly accepted together with an officers’ certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the
Company.
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Subject to applicable procedures of the Depositary with respect to global securities, the Paying Agent will as
promptly as practicable mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Company and the Trustee will as promptly as practicable execute and authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note in a principal amount equal to any unpurchased portion of the Notes surrendered, if any; provided, however, that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations
to the extent such laws and regulations are applicable in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture relating to a Change of
Control, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the applicable provisions of the Indenture by virtue thereof.
“
Indebtedness
” means any indebtedness (whether principal, premium or interest)
for or in respect of (A) any notes, bonds, debenture stock, loan stock or other securities, (B) any Loan Financing, or (C) any liability under or in respect of any banker’s acceptance or banker’s acceptance credit;
provided
that (x)
Intercompany Indebtedness and (y) Indebtedness that qualifies as Non-recourse Securitization Debt shall, in each case, not be deemed to be Indebtedness for purposes of paragraph (9) or any other purpose of this Officers’ Certificate.
“
Loan Financing
” means any money borrowed from (A) a bank, financial institution, hedge fund, pension fund, or insurance
company or (B) any other entity having as its principal business the lending of money and/or investing in loans, in each case other than public or quasi-public entities or international organizations with a public or quasi-public character.
“
Intercompany Indebtedness
” means Indebtedness of (A) the Company to a Subsidiary; (B) a Subsidiary to the Company; or (C) a
Subsidiary to any other Subsidiary.
“
Non-recourse Securitization Debt
” means any Indebtedness incurred by a
Securitization Entity pursuant to a securitization of receivables where the recourse in respect of that Indebtedness to the Company is limited to:
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(A)
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those receivables and/or related insurance and/or any Standard Securitization Undertakings; and
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(B)
|
if those receivables comprise all or substantially all of the business or assets of such Securitization Entity, the shares or other interests of the Company or any of its Subsidiaries in such Securitization Entity;
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provided
that any Indebtedness not qualifying as Non-recourse Securitization Debt solely because the extent of
recourse to the Company or any of its Subsidiaries with respect to such Indebtedness is greater than that provided in clauses (A) and (B) above shall only not qualify as Non-recourse Securitization Debt with respect to the extent of such additional
recourse.
The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer.
The provisions under the Indenture relative to the Company’s obligation to make an offer to
repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
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(9)
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So long as any of the Notes remains outstanding, the Company will not create any mortgage, charge, pledge, lien, encumbrance or other security interest (“
Lien
”) (other than a Permitted Lien) upon its
assets to secure any Quoted Indebtedness or any Qualifying Guarantee of such Quoted Indebtedness, unless in any such case the Company grants, for the benefit of holders of the Notes, a security interest in such assets that is equal and ratable to
the security interests in favor of the holders of the Quoted Indebtedness (or, in the case of a Lien securing Quoted Indebtedness that is expressly subordinated or junior to the Notes, secured by a Lien that is senior in priority to such Lien).
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“
Permitted Liens
” means:
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(A)
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Liens existing on the Issue Date; or
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(B)
|
Liens arising by operation of law, by contract having an equivalent effect, from rights of set-off arising in the ordinary course of business between the Company and any of its suppliers or customers, or from rights of
set-off or netting arising by operation of law (or by contract having similar effect) by virtue of the provision to the Company of clearing bank facilities or overdraft facilities; or
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(1) the receivables of a Securitization Entity (and any bank account to which
such proceeds are deposited) which are subject to a Non-recourse Securitization as security for Non-recourse Securitization Debt raised by such Securitization Entity in respect of such receivables; and/or
(2) the shares or other interests owned by the Company or any of its Subsidiaries in any Securitization Entity as security for Non-recourse
Securitization Debt raised by such Securitization Entity; provided that the receivables or revenues which are the subject of the relevant Non-recourse Securitization comprise all or substantially all of the business of such Securitization Entity; or
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(D)
|
any Liens on assets acquired by the Company or any of its Subsidiaries after the Issue Date; provided that (i) such Lien was existing or agreed to be created at or before the time the relevant asset was acquired by the
Company or any of its Subsidiaries, (ii) such Lien was not created in contemplation of such acquisition, and (iii) the principal amount then secured does not exceed the principal amount of the committed financing then secured (whether or not drawn),
with respect to such assets at the time the relevant asset was acquired by the Company or any of its Subsidiaries; or
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(E)
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any Lien created to secure all or any part of the purchase price, or to secure Quoted Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of construction, of property (or any
improvement thereon) acquired or constructed by the Company after the Issue Date; provided that (i) any such Lien shall extend solely to the item or items of property (or improvement thereon) so acquired or constructed and (ii) the principal amount
of Quoted Indebtedness secured by any such Lien shall at no time exceed an amount equal to the fair market value of such property (or any improvement thereon) at the time of such acquisition or construction; or
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(F)
|
any Lien securing Quoted Indebtedness incurred to refinance other indebtedness itself secured by a Lien included in clauses (A), (B), (D) or (E) above, but only if the principal amount of the Quoted Indebtedness is not
increased and only the same assets are secured as were secured by the prior Lien; or
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(G)
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any Lien provided in favor of any bank or governmental (central or local), intergovernmental or supranational body, agency, department or other authority securing any Quoted Indebtedness of the Company under a loan
scheme operated by (or on behalf of) Banco Nacional de Desenvolvimento Economico e Social, Finame, Banco de Minas Gerais, any agency or instrumentality of the United States, an OECD Country, Argentina, Brazil, China, India, South Africa or any
supranational entity (such as the European Bank for Reconstruction and Development or the International Finance Corporation) where the provision of such Lien is required for the relevant loan; or
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(H)
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(1) any Lien created on the shares of capital stock of any of the Company’s subsidiaries, and (2) any Lien created on the assets of any of the Company’s subsidiaries of the type described in (E) above other
than shares of capital stock of any of the Company’s subsidiaries; or
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(I)
|
any Lien in favor of the Company or any of its Subsidiaries; or
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(J)
|
any Lien in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments
pursuant to any contract or provisions of any statute; or
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(K)
|
any Lien incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal income taxation pursuant to Section 103(a) of the Internal Revenue Code of 1954, as amended; or
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(L)
|
any Lien securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Indebtedness, if made and
continuing in the ordinary course of business; or
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(M)
|
any Lien under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Company, or deposits of cash or obligations of the United States of America to secure surety and appeal bonds to which the Company is a
party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or any Lien imposed by law, such as laborers’ or other employees’, carriers’, warehousemen’s, mechanics’,
materialmen’s and vendors’ Liens and Liens arising out of judgments or awards against the Company with respect to which the Company at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall
have secured a stay of execution pending such appeal or proceedings for review, or any Lien for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the
Company, or minor survey
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exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning
or other restrictions or Liens as to the use of real properties, which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the good faith opinion of the Company, in the aggregate materially detract from the
value of said properties or materially impair their use in the operation of the business of the Company; or
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(N)
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any Lien relating to collateral provided to any counterparty of the Company in connection with any Hedging Transaction; or
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(O)
|
any extension, renewal, refunding or replacement of the foregoing.
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“
Non-recourse
Securitization
” means any securitization, asset backed financing or transaction having similar effect under which an entity (or entities in related transactions) on commercially reasonable terms:
(A) acquires receivables for principally cash consideration or uses existing receivables; and
(B) issues any notes, bonds, commercial paper, loans or other securities (whether or not listed on a stock exchange) to fund
the purchase of or otherwise backed by those receivables and/or any shares or other interests referred to in clause (C)(2) above and the payment obligations in respect of such notes, bonds, commercial paper, loans or other securities:
(1) are secured on those receivables; and
(2) are not guaranteed by the Company or any of its Subsidiaries (other than as a result of any Lien which is granted by the
Company or any of its Subsidiaries as permitted by clause (C)(2) above or as to the extent of any Standard Securitization Undertakings).
“
Quoted Indebtedness
” means any Indebtedness in the form of, or represented by, bonds, notes, debentures, loan stock or other
securities and which at the time of issue is, or is of the type ordinarily quoted, listed or dealt in on any stock exchange or over-the-counter market or other securities market (whether or not initially distributed by means of a private
placement).
“
Qualifying Guarantee
” means a direct or indirectly guarantee in respect of any
Indebtedness or a direct or indirect indemnity against the consequences of a default in the payment of any Indebtedness, other than, in each case, by endorsement of negotiable instruments, letters of credit or reimbursement agreements in the
ordinary course of business.
“
Hedging Transaction
” means any transaction to hedge interest rate, currency, commodity
and/or equity risks and exposures, including a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default
option, total return option, credit spread transaction, repurchase transaction, reverse repurchase transaction, security lending transaction, buy/sell-back transaction, agreement for the purchase, sale or transfer of any commodity or any other
commodity trading transaction or any other similar transaction (including any option with respect to any of these transactions) or any combination of these transactions or any transactions similar to the transactions described above.
“
Securitization Entity
” means any special-purpose vehicle created for the sole purpose of carrying out, or otherwise used
solely for the purpose of carrying out, a Non-recourse Securitization or any other Industrial Subsidiary which is effecting Non-recourse Securitizations.
“
Standard Securitization Undertakings
” means representations, warranties, covenants and indemnities entered into by the
Company or any of its Subsidiaries from time to time which are customary in relation to Non-recourse Securitizations, including any performance undertakings with respect to servicing obligations or undertakings with respect to breaches of
representations or warranties.
“
Industrial Subsidiary
” means each subsidiary of the Company other than a Financial
Services Subsidiary.
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(10)
|
All payments in respect of the Notes by or on behalf of the Company shall be made without withholding or deduction for or on account of any present or future taxes or duties of whatever nature, including penalties and
interest and other similar liabilities related thereto (collectively, “Taxes”) imposed, withheld or levied by or on behalf of the Relevant Tax Jurisdiction, unless such withholding or deduction is required by the law of any Relevant Tax
Jurisdiction.
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Where the withholding or deduction of Taxes is required by the law of any Relevant Tax
Jurisdiction, the Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (“
Additional Amounts
”) as shall be necessary in order that the net amounts payable by the Company after such
withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall equal the respective amounts which would otherwise have been payable in respect of the Notes in the absence of such withholding
or deduction. The Company’s obligation to pay Additional Amounts shall not apply:
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(A)
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to any Taxes that are only payable because a present or former type of connection exists or existed between the holder or beneficial owner of Notes and a Relevant Tax Jurisdiction other than a connection related solely
to purchase, ownership or holding of such Notes or the receipt of any payment or the exercise or enforcement of any rights under such Notes or the Indenture;
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(B)
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to any holder that is not the sole beneficial owner of Notes, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that the beneficial owner of Notes, a beneficiary or settlor with respect
to such fiduciary, or a member of such partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner, beneficiary, settlor or member directly held such Notes;
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(C)
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to any Taxes giving rise to such Additional Amounts that would not have been imposed or withheld but for the failure of a holder or beneficial owner of Notes to accurately comply with a request, made to such holder or
beneficial owner from the Company or any Paying Agent, to provide information concerning the nationality, residence or identity of such holder or beneficial owner of the Notes to satisfy certification, identification or information reporting
requirements required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Tax Jurisdiction as a precondition to exemption from, or reduction in, the imposition or withholding of such Taxes, but in each case only to
the extent such holder or beneficial owner is legally eligible to provide such information with respect to such requirements;
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(D)
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to any Taxes that are imposed other than by withholding or deduction by the Company or a Paying Agent from payments under, or with respect to, the Notes;
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(E)
|
to any Notes presented for payment more than 30 days after the day on which the payment becomes due or is duly provided for, whichever occurs later, except to the extent that the holder thereof would have been entitled
to Additional Amounts on presenting the same for payment on the last day of such 30-day period assuming that day to have been a Business Day;
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(F)
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to any Taxes that are imposed or withheld solely because of a change in law, regulation, or administrative or judicial interpretation that becomes effective after the day on which the payment becomes due or is duly
provided for, whichever occurs later;
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(G)
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to any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or similar Taxes;
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(H)
|
to any Taxes any Paying Agent (which term may include the Company) must withhold from any payment of principal of or interest on any note, if such payment can be made without such withholding by any other paying agent
engaged by the Company to make such payment;
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(I)
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in the case of any combination of the above items.
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In addition, any amounts to be paid on the
Notes will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or the Code, as of the Issue Date (or any amended or successor version of such
Sections of the Code that is substantively comparable and not material more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any
fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no Additional Amounts will be required to be paid on
account of any such deduction or withholding.
The Company will make all withholdings and deductions of Taxes required by law and will
remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company
will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company will furnish to the Trustee, within a
reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or if, notwithstanding the Company’s efforts to obtain receipts, receipts are not
obtained, other evidence of payments (reasonably satisfactory to the Trustee). Upon reasonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the holders or beneficial
owners of the Notes.
Whenever in the Indenture or in this Officers’ Certificate there is mentioned, in any context, the payment of
amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes, such mention shall be deemed to include the payment of Additional Amounts to the extent that,
in such context, Additional Amounts are, were or would be payable in respect thereof.
The foregoing obligations described in this
paragraph (10) will survive any termination, defeasance or discharge of the Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to the Company is incorporated, organized or otherwise considered to be a resident for
Tax purposes and any political subdivision or Tax authority or agency thereof or therein.
The Notes are subject in all cases to any tax,
fiscal or other law or regulation or administrative or judicial interpretation applicable. Except as specifically provided under this paragraph (10) and paragraph (11), the Company does not have to make any payment with respect to any Taxes imposed
by any governmental authority or political subdivision having the power to tax.
“
Relevant Tax Jurisdiction
” means The
Netherlands, the United Kingdom, any jurisdiction in which the Company is resident for tax purposes, or any jurisdiction in which the Paying Agent is incorporated, organized or otherwise resident for tax purposes and, in each case, any political
subdivision or any authority thereof or therein having power to tax (and includes, in the event of a merger or consolidation of the Company, any jurisdiction in which the Company or its successor is then incorporated, organized or otherwise resident
for Tax purposes, and any political subdivision or any authority thereof or therein having power to tax).
“
Issue Date
”
means August 18, 2016, the date of initial issuance of the Notes.
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(11)
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If (a) the Company becomes or will become obligated to pay Additional Amounts with respect to any Notes (as described under paragraph (10)) as a result of any change in, or amendment to, the laws, regulations or rulings
of a Relevant Tax Jurisdiction, or any change in the application or official interpretation of the laws, regulations or rulings of a Relevant Tax Jurisdiction, which change or amendment becomes effective on or after the Issue Date, and (b) such
obligation cannot be avoided by the Company taking reasonable measures available to it, the Company may at its option, upon at least 30 days’ notice to the holders of the Notes (which notice shall be irrevocable), redeem all, but not a portion
of, of the Notes at any time at their principal amount together with interest accrued to, but excluding, the date of redemption;
provided
that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on
which the Company would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.
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Prior to
the publication of any notice of redemption pursuant to this paragraph (11), the Company shall deliver to the Trustee (i) a certificate stating that the requirements referred to in (a) and (b) above are satisfied, and (ii) an opinion of counsel to
the Company of recognized standing qualified under the laws of the Relevant Tax Jurisdiction and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld) to the effect that the Company has or will become obliged to pay
such Additional Amounts as a result of such change or amendment.
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(12)
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The Company may acquire any of the Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as
such acquisition does not otherwise violate the terms of the Indenture. Such Notes may be held, resold or, at the Company’s option, surrendered to the Trustee for cancellation.
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(13)
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The Notes may be issued only in fully registered form and the authorized denomination of the Notes shall be $2,000 and any integral multiple of $1,000 in excess thereof.
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(14)
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The Notes shall be denominated, and payments of the principal of, any Redemption Price and the interest on the Notes shall be made, in United States dollars.
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(15)
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The Notes shall be subject to Legal Defeasance and Covenant Defeasance as provided in Article 13 of the Indenture.
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(16)
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The Notes will be represented by one or more global securities (each a “Global Security”) registered in
the name of a nominee of the Depositary.
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The Depository Trust Company will act as the Depositary. Except as provided in Section 3.05 of the Indenture, Notes will not be issuable in definitive form and will not be exchangeable or
transferable. So long as the Depositary or its nominee is the registered holder of any Global Security, the Depositary or its nominee, as the case may be, will be considered the sole Holder of the Notes represented by such Global Security for all
purposes under the Indenture and the Notes.
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(17)
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The Trustee is hereby appointed as a Paying Agent and Security Registrar for the Notes.
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(18)
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“
Event of Default
” includes, in addition to those provided under Section 5.01 of the Indenture with respect to the Notes, a default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Company or any Material Subsidiary (including any Indebtedness of any Material Subsidiary (but not any other Subsidiary) the payment of which is guaranteed by the Company
or any other Material Subsidiary), which default (A) is caused by a failure to pay the principal of any such Indebtedness (including, without limitation, a such failure under any called but unpaid guarantee issued or given by the Company or any
such Material Subsidiary in respect of any such Indebtedness), whether in the case of a repayment at maturity, a mandatory prepayment or otherwise, in each case after any applicable grace period provided in such Indebtedness or guarantee on the date
of such failure (each such failure being a “payment default”), which payment default has not been validly waived in accordance with the terms of such Indebtedness or guarantee and applicable law, or (B) results in the acceleration of
such Indebtedness prior to its express maturity, and such acceleration has not been validly waived in accordance with the terms of such Indebtedness and applicable law; and, in each case of (A) or (B), the total principal amount of such
Indebtedness unpaid or accelerated exceeds US$300,000,000 (or the equivalent thereof in any other currency or currencies as of such time of determination);
provided
that, in each case of (A) or (B), it will be deemed not to be an Event
of Default if such Indebtedness is paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 30 Business Days after such failure to pay or such acceleration.
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“
Material Subsidiary
” means, at any time of determination, (A) any Subsidiary that constitutes a “significant
subsidiary” at such time, as defined in Rule 1-02(w) of Regulation S-X under the Securities Act (as in effect on the Issue Date); (B) any Treasury Subsidiary or (C) any Subsidiary under the direct or indirect Control of the Company that
directly or indirectly Controls a Subsidiary that meets the requirements of
the preceding clauses (A) or (B); provided that if any Subsidiary Controls such a Subsidiary only pursuant to the aggregate ownership test specified in the proviso to clause (1) of the definition
of “Control,” “Controls” or “Controlled” below, then, and only then, the Company shall have the right to designate which such Subsidiaries shall be deemed to so Control such a Subsidiary; provided that, in each case,
such designated Subsidiaries Control in the aggregate more than 50 percent of the relevant Subsidiary’s Voting Stock. For purposes of this definition of “Material Subsidiary,” (i) the term “Control,” “Controls” or
“Controlled” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50 percent of the Voting Stock of a Person measured by voting power rather than number of shares; provided that to the extent that no single
entity directly owns more than 50 percent of the Voting Stock of a Person, entities with aggregate direct or indirect ownership of more than 50 percent of the Voting Stock of a Person will be deemed to Control such Person or (2) the power to appoint
or remove all or the majority of the directors or other equivalent officers of a Person and (ii) no Financial Services Subsidiary shall be considered or deemed to be a Material Subsidiary. Notwithstanding the foregoing, a Subsidiary shall be
considered or deemed to be a Material Subsidiary only to the extent that such Subsidiary is located or domiciled in an OECD Country.
“
Subsidiary
” means any of the Company’s direct or indirect subsidiaries consolidated by the Company in accordance with
U.S. GAAP.
“
CNH Industrial
” means the Company and its direct and indirect subsidiaries consolidated by the Company in
accordance with U.S. GAAP.
“
Treasury Subsidiary
” means (A) CNH Industrial Finance Europe S.A. and (B) any other
Subsidiary of the Company the primary purpose of which is borrowing funds, issuing securities or incurring Indebtedness. For the avoidance of doubt, “Treasury Subsidiary” does not, and shall not be deemed to, include any Financial Services
Subsidiary.
“
Financial Services Subsidiary
” means a subsidiary of the Company:
(A) which carries on no material business other than the offer and sale of financial services products to customers of CNH
Industrial (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing and the purchase and sale of equipment in connection with equipmentalley.com and
rental business activities) in any of the following areas:
(1) retail financing for the purchase, contract hire or lease
of new or used equipment manufactured by the Company or any of its Subsidiaries or any other manufacturer whose products are from time to time sold through the dealer network of CNH Industrial;
(2) other retail and wholesale financing programs reasonably related thereto,
including, without limitation, financing provided to the dealer network of CNH Industrial;
(3) insurance and credit card
products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and
(4) licensed financial services activities; or
(B) a holding company of a Financial Services Subsidiary which carries on no material business or activity other than holding
shares in that Financial Services Subsidiary and/or activities described in clause (A) above.
“
U.S. GAAP
” means
accounting principles generally accepted in the United States of America.
“
Voting Stock
” of any Person as of any date
means the capital stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
“
OECD Country
” means a country that is a member of the Organization for Economic Cooperation and Development or any successor
organization (or, to the extent that the Organization for Economic Cooperation and Development or a successor organization no longer exists, at the time the relevant organization ceased to exist).
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B.
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Establishment of form of Note pursuant to Section 2.01 of the Indenture.
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Terms used but not
otherwise defined in this Officers’ Certificate shall have the meanings ascribed to them in the Indenture.
It is hereby established
pursuant to Section 2.01 of the Indenture that the Global Security representing the Notes shall be substantially in the form attached hereto as Annex A.
Reference is hereby made to the resolutions of the Board of Directors of the
Company, dated as of September 7, 2015 and the resolutions of the pricing committee of the Board of Directors of the Company, dated as of August 4, 2016 (the “
Resolutions
”), relating to the offering and sale of the Securities; the
Resolutions have not been further amended, modified or rescinded and remain in full force and effect; and the Resolutions, together with this Officers’ Certificate, are the only resolutions, approval or other action adopted by the Board of
Directors of the Company or by any Authorized Officer as defined in the Resolutions relating to the offering and sale of the Notes.
The
undersigned Richard J. Tobin and Massimiliano Chiara, respectively, being Authorized Officers as defined in the Resolutions, each certifies that he has approved the terms of the Notes as set forth in this Officers’ Certificate, all in
accordance with the authority of such officer pursuant to the Resolutions. Pursuant to Section 1.02 of the Indenture, the undersigned each certifies that he has read and is familiar with the provisions of the Indenture (including Articles Two and
Three of the Indenture relating to the issuance of the Notes thereunder and the definitions in the Indenture relating thereto); that he is generally familiar with the affairs of the Company and its corporate acts and proceedings; that he has
reviewed the Resolutions and such other documents as he deems necessary and proper to give the opinion expressed herein; that, in his opinion, he has made such examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not the covenants and conditions precedent provided in the Indenture relating to the establishment of the Notes and authentication thereof have been complied with; and that he is of the opinion that all conditions precedent and
covenants provided for in the Indenture relating to the establishment of the Notes and authentication thereof have been complied with.
[
Signature Page Follows
]
IN WITNESS WHEREOF, we have executed this Certificate as of the date first written above.
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By:
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/s/ Richard J. Tobin
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Name:
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Richard J. Tobin
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Title:
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Chief Executive Officer
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By:
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/s/ Massimiliano Chiara
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Name:
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Massimiliano Chiara
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Title:
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Chief Financial Officer
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Annex A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO CNH INDUSTRIAL N.V. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE IN WHOLE OR IN PART FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE INDENTURE.
CUSIP No.: 12594K AA0
ISIN No.: US12594KAA07
CNH
INDUSTRIAL N.V.
4.50% NOTE DUE 2023
CNH INDUSTRIAL N.V., a public limited liability company organized and existing under the laws of the Kingdom
of the Netherlands (the “
Company
,” which term includes any successor entity), for value received promises to pay to CEDE & CO. or registered assigns, the principal sum of [●] DOLLARS on August 15, 2023.
Interest Payment Dates: February 15 and August 15, commencing February 15, 2017.
Regular Record Dates: February 1 and August 1.
Reference is made to the further provisions of this Note contained herein and the Indenture (as defined), which will 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 Note 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.
Dated: August 18, 2016
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CNH INDUSTRIAL N.V.
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By:
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Massimiliano Chiara
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Chief Financial Officer
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[Note]
Certificate of Authentication
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: August 18, 2016
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U.S. BANK NATIONAL ASSOCIATION,
As Trustee
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By:
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Authorized Signatory
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(REVERSE OF SECURITY)
4.50% NOTE DUE 2023
1.
Interest
. CNH Industrial N.V., a public limited liability company organized and existing under the laws of the Kingdom of the Netherlands (the “
Company
”), promises to pay interest on the principal amount of this Note at
the rate
per annum
shown above. Interest on the Notes will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from August 18, 2016. The Company will pay interest
semi-annually
in arrears on each Interest Payment Date, commencing February 15, 2017. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue installments of interest (without regard to any applicable grace periods)
to the extent lawful from time to time on demand at the rate borne by the Notes.
2.
Method of Payment
. The Company shall pay
interest on the Notes (except defaulted interest) to the Persons who are the registered Holders at the close of business on the February 1 or August 1 immediately preceding the Interest Payment Date (whether or not such day is a Business
Day) even if the Notes are cancelled on registration of transfer or registration of exchange after such Regular Record Date. Holders must surrender Notes to a Paying Agent to collect principal payments. Payments of principal and premium,
if any, will be made (on presentation of such Notes if in certificated form) in money of the United States that at the time of payment is legal tender for payment of public and private debts;
provided, however
, that the Company may pay
principal, premium, if any, and interest by check payable in such money. The Company may deliver any such interest payment to the Paying Agent or to a Holder at the Holder’s registered address.
3.
Paying Agent and Security
Registrar
. Initially, U.S. Bank National Association, a national banking association (the
“
Trustee
”), will act as Paying Agent and Security Registrar. The Company may change any Paying Agent, Security Registrar or co-Security Registrar without notice to the Holders.
4.
Indenture
. The Company issued this Note under an Indenture, dated as of August 18, 2016 (herein called the
“
Indenture
”, which term shall have the meaning assigned to it in such instrument and which shall include the terms of the Notes established by the Officers’ Certificate, dated August 18, 2016 (the “
Officers’
Certificate
”), pursuant to such instrument), by and between the Company and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb)
(the “
TIA
”), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of them. The Notes are general unsecured obligations of the Company. In the event of any
inconsistency between this Note and the terms of the Indenture, the terms of the Indenture shall govern.
5.
Redemption
. The Notes shall be redeemable, at the Company’s option, in whole at
any time or in part from time to time, at a Redemption Price equal to the greater of (i) 101% of the principal amount of the Notes to be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal,
premium and interest (excluding accrued but unpaid interest to the Make-Whole Redemption Date) on the Notes to be redeemed to the maturity date thereof, discounted to the Make-Whole Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Applicable Treasury Rate plus 50 basis points, plus in each case unpaid interest, if any, accrued to, but excluding, such Make-Whole Redemption Date.
6.
Notice of Redemption
. Notice of a Make-Whole Redemption under paragraph 5 of this Note will be mailed at least 30 days but not
more than 60 days before the Make-Whole Redemption Date to each Holder to be redeemed at such Holder’s registered address or otherwise delivered in accordance with the applicable procedures of the Depository Trust Company.
Except as set forth in the Indenture, if monies for the redemption of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Make-Whole Redemption Date, then, unless the Company defaults in the payment of such Redemption Price plus accrued interest, if any, the Notes called for redemption will cease to bear interest from and after such
Make-Whole Redemption Date and the only right of the Holders of such Notes will be to receive payment of the Redemption Price plus accrued interest, if any.
7.
Offers to Purchase
. The Indenture provides that upon the occurrence of a Change of Control Triggering Event, and subject to
further limitations contained therein, the Company will make an offer to purchase the Notes in accordance with the procedures set forth in the Indenture.
8.
Denominations; Transfer; Exchange
. The Notes are in registered form, without coupons, in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Security Registrar need not register the transfer of or exchange of any Notes or portions
thereof selected for redemption.
9.
Persons Deemed Owners
. The registered holder of a Note shall be treated as the owner of
it for all purposes.
10.
Unclaimed Money
. If money for the payment of principal or interest remains unclaimed for two years,
the Trustee and the Paying Agent will pay the money back to the Company on Company Request. After that, Holders entitled to money must look to the Company for payment as unsecured general creditors.
11.
Legal Defeasance and Covenant Defeasance
. The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Notes or certain restrictive covenants with respect to the Notes and Events of Default with respect to the Notes, in each case upon compliance with certain conditions set forth in the Indenture.
12.
Amendments, Supplements, and Waivers
. 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 Notes 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 Outstanding Notes at that time. The Indenture also contains provisions, with certain exceptions as therein provided, (i) permitting the Holders of not less than a majority in principal amount of
the Outstanding Notes, on behalf of all Holders of the Notes, to waive compliance by the Company with certain provisions of the Indenture with respect to the Notes and (ii) permitting the Holders of a majority in principal amount of the
Outstanding Notes, on behalf of all Holders of the Notes, to waive certain past defaults in respect of the Notes under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note 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 Note.
13.
Restrictive Covenants
. The Indenture imposes certain limitations on, among other things, the Company’s ability to create
any Lien (other than a Permitted Lien) upon its assets to secure any Quoted Indebtedness or any Qualifying Guarantee of such Quoted Indebtedness and to consolidate, merge, convey, transfer or lease all or substantially all of its properties and
assets. Such limitations are subject to a number of important qualifications and exceptions. The Company must annually report to the Trustee on compliance with such limitations.
14.
Additional Amounts and Redemption Upon a Tax Event
. Where the withholding or deduction of Taxes is required by the law of any
Relevant Tax Jurisdiction, the Company will, subject to the exceptions and limitations set forth in the Officers’ Certificate, pay Additional Amounts as shall be necessary in order that the net amounts payable by the Company after such
withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall equal the respective amounts which would otherwise have been payable in respect of the Notes in the absence of such withholding
or deduction.
If (a) the Company becomes or will become obligated to pay Additional Amounts with respect to any Notes as a result of
any change in, or amendment to, the laws, regulations or rulings of a Relevant Tax Jurisdiction, or any change in the application or official interpretation of the laws, regulations or rulings of a Relevant Tax Jurisdiction, which change or
amendment becomes effective on or after the Issue Date, and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it, the Company may at its option, upon at least 30 days’ notice to the Holders
of the Notes (which notice shall be irrevocable), redeem all, but not a portion of, of the Notes at any time at their principal amount together with interest accrued to, but excluding, the date of redemption;
provided
that no such notice of
redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.
15.
Successor Entity
. When a successor entity assumes, in accordance with the
Indenture, all the obligations in respect of the Notes of its predecessor under the Notes and the Indenture, and immediately before and thereafter no Default with respect to the Notes or Event of Default with respect to the Notes exists and certain
other conditions are satisfied, the predecessor entity will be released from those obligations.
16.
Defaults and
Remedies
. Events of Default are set forth in the Indenture (including the Officers’ Certificate). If an Event of Default (other than an Event of Default specified in Section 5.01(5) or (6) of the Indenture) shall occur and be
continuing with respect to the Notes, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare the principal of, premium, if any, and accrued interest on all of the Outstanding Notes (or, if any Notes are
Original Issue Discount Securities, such portion of the principal amount of such Notes as may be specified by the terms thereof) to be due and payable by notice in writing to the Company and (if given by the Holders) the Trustee specifying the
respective Events of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable;
provided, however
, that after such acceleration but before a judgment or decree based on such
acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Notes may rescind and annul such acceleration if, among other things, all existing Events of Default with respect to the Notes, other
than the nonpayment of principal or interest that has become due solely because of the acceleration, have been cured or waived. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto. In
case an Event of Default specified in Section 5.01(5) or (6) of the Indenture occurs with respect to the Notes and is continuing with respect to the Notes, such principal amount, together with premium, if any, and interest with respect to all
of the Notes, shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders.
17.
Trustee Dealings with Company
. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Sections 6.08 and 6.13 of the Indenture, may otherwise deal with the Company with the same
rights it would have if it were not Trustee.
18.
No Recourse Against Others
. As more fully described in the Indenture, no
director, officer, employee, stockholder or incorporator, as such, of the Company shall have any liability for any obligation of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.
19.
Authentication
. This Note shall not be valid until the Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.
20.
Governing Law; Waiver of Jury Trial
. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR STATUTE). EACH OF THE PARTIES TO THE INDENTURE HAS AGREED TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA AND THE COURTS OF THE STATE OF NEW YORK, IN EACH CASE LOCATED IN THE CITY OF NEW YORK, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, RELATING TO OR BASED ON THE INDENTURE, THIS NOTE OR ANY
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF, RELATING TO OR BASED ON THE INDENTURE, THIS NOTE OR ANY TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
21.
Abbreviations and Defined Terms
. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
23.
Indenture
. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to: CNH Industrial N.V., c/o CNH Industrial America LLC, 6900 Veterans Blvd., Burr Ridge, IL 60527, Attention: Chief Compliance Officer and Corporate Secretary.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
, agent
to transfer this Note on the books of CNH Industrial N.V. The agent may substitute another to act for him.
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Date:
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Signed:
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(Sign exactly as your name appears on the other side of this Note)
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security
Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by CNH Industrial N.V. pursuant to paragraph (7) of the Officers’ Certificate,
check the following box:
Paragraph (7) of the Officers’ Certificate
¨
If you want to elect to have only part of this Note purchased by CNH Industrial N.V. pursuant to paragraph (7) of the Officers’
Certificate, state the amount you elect to have purchased:
$
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Date:
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NOTICE: The signature on this assignment must correspond with the name as it appears upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever and be guaranteed by the
endorser’s bank or broker.
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security
Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[●]. The following increases or decreases in this Global Security have been
made:
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Date of Exchange
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Amount of decrease in
Principal Amount of
this Global Security
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Amount of increase in
Principal Amount of
this Global Security
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Principal amount of this
Global Security
following such decrease
or increase
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Signature of authorized
signatory of Trustee or
Global Security
custodian
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