Exhibit 1
TECH DATA CORPORATION
$500,000,000 3.700% Senior Notes due 2022
$500,000,000 4.950% Senior Notes due 2027
Underwriting Agreement
January 24, 2017
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Tech Data Corporation, a
corporation organized under the laws of Florida (the “
Company
”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the “
U
nderwriters
”), for whom you (the
“
Representatives
”) are acting as representatives, $500,000,000 in aggregate principal amount of its 3.700% Senior Notes due 2022 (the “
2022
Notes
”) and $500,000,000 in aggregate principal amount of its 4.950%
Senior Notes due 2027 (the “
2027
Notes
” and, together with the 2022 Notes, the “
Notes
”). To the extent there are no additional parties listed on Schedule I other than you, the term Representatives as used
herein shall mean you as the Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 18 hereof.
The Notes are to be issued under an indenture (the
“
Base
Indenture
”), dated as of January 17, 2017, between the Company and MUFG Union Bank, N.A., as trustee (the “
Trustee
”). Certain terms of the Notes will be established in an Officer’s Certificate
pursuant to the Base Indenture (together with the Base Indenture, the “
Indenture
”). The
Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust
Company (the “
Depositary
”), pursuant to a Letter of Representations, to be dated on or before the Closing Date (as defined in Section 2 below) (the “
DTC
Agreement
”), delivered by the Company to the
Depositary.
The Company has entered into an agreement dated as of September 19, 2016 (the “
Acquisition
Agreement
”) with Avnet, Inc. (the “
Seller
”) to purchase all the shares of AVT Technology Solutions LLC (“
AVT
”) and TS Divestco B.V. (“
Divestco
” and together with AVT, the
“
Acquired
Companies
”), which will hold all assets and liabilities primarily relating to the technology solutions business of the Seller, as described in the Disclosure Package (as defined below). The term
“
Acquisition
Agreement
” as used herein shall include all exhibits, schedules and attachments to such Acquisition Agreement. The term “
Acquisition
” as used herein shall refer to the transactions contemplated
by the Acquisition Agreement.
1.
Representations
and
Warranties
. The Company hereby
represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “
Representation
Date
”), as follows:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the
“
Commission
”) a registration statement on Form
S-3
(File
No. 333-215579),
which contains a base prospectus (the “
Base
Prospectus
”), to be used in connection with the public offering and sale of debt securities of the Company, including the Notes, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “
Securities
Act
”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements, exhibits and schedules
thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“
Registration
Statement
.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “
Rule
462(b)
Registration
Statement
” and from and
after the date and time of filing of the Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The term “
Prospectus
” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed (the “
Execution
Time
”) by the parties hereto. The term
“
Preliminary
Prospectus
” shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3
under the Securities Act prior to 3:30 p.m. New York City time on January 24, 2017 (the “
Initial
Sale
Time
”). All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary
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Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System (“
EDGAR
”).
All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and
all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (collectively, the “
Exchange
Act
”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as
the case may be, after the Initial Sale Time.
(b) The Company meets the requirements for use of
Form
S-3
under the Securities Act. The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the best of the Company’s knowledge, are contemplated or threatened by the Commission, and any request on part of the Commission for additional
information has been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939.
At the respective times the Registration Statement and any post-effective amendments thereto became effective and at each
Representation Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any
amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any
amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use therein, it being understood and agreed that the
only such information furnished by any Underwriter through the
3
Representatives consists of the information described as such in Section 8(b) hereof. There is no contract or other document required to be described in the Prospectus or to be filed as an
exhibit to the Registration Statement that has not been described or filed as required.
Each Preliminary Prospectus and
the Prospectus, at the time each was filed with the SEC, complied in all material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(c) The term “
Disclosure
Package
” shall mean (i) the
Preliminary Prospectus dated January 24, 2017, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “
Issuer
Free
Writing
Prospectus
”), if any, identified in Schedule II hereto, and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the
Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof.
(d) The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with
the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in reliance on the exemption
4
of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405 of the Securities Act. The
Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received
from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(f) (i) At the time of filing the Registration Statement and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission
pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the
completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will
promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not
apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof.
(h) 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 Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act.
(i) The Company is subject to and in full compliance with the reporting requirements of Section 13
or Section 15(d) of the Exchange Act.
5
(j) The Company has not taken, directly or indirectly, any
action designed to cause or which has constituted or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes.
(k) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in
the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(l) Each of the Company’s subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in
the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except for such failure that would not,
individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business.
(m) To the knowledge of the Company, each of the Acquired
Companies has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is in good standing under the laws of each jurisdiction which requires such qualification, except for such failure that would not, individually or
in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries and the Acquired Companies, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(n) All the outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the
subsidiaries are owned by the Company either directly or through one or more wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances, except for such failure that
would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
6
(o) The Company’s authorized equity capitalization is
as set forth in the Disclosure Package and the Prospectus; all of the outstanding shares of the Common Stock, have been duly and validly authorized and are fully paid and
non-assessable;
and the statements in
the Disclosure Package and the Prospectus under the headings “Certain United States Federal Income Tax Considerations,” “Description of Debt Securities” and “Description of the Notes” fairly summarize the matters
therein described.
(p) To the knowledge of the Company, all the outstanding shares of capital stock
of each of the Acquired Companies has been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of the Acquired Companies will be, upon completion of the Acquisition, owned by the
Company either directly or through one or more wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances, except for such perfected security interest or any other
security interests, claims, liens or encumbrances that would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Acquired Companies and
their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(q) This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has
been duly authorized by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by the Company, will have been duly executed and delivered by the Company and will constitute a legal,
valid and binding instrument of the Company enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and to general principles of equity); the Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to
general principles of equity).
(r) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except such as will be obtained under the Securities Act and the Trust Indenture Act and such as may be
7
required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters in the manner contemplated herein and in the Disclosure
Package and the Prospectus.
(s) Neither the execution and delivery of the Indenture or this
Agreement, the issue and sale of the Notes, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with, or result in a breach or violation of or
imposition of, any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or bylaws of the Company or any of its subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is
subject, except for such conflicts, breaches, violations or impositions which (x) could not, individually or in the aggregate, be expected to have a material adverse effect on the performance of this Agreement or the Indenture or the
consummation of any of the transactions contemplated hereby or thereby; or (y) would not, individually or in the aggregate, have a material adverse effect on the Underwriters and which would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; or
(iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, except for such conflicts, breaches, violations or impositions which (x) could not, individually or in the aggregate, be expected to have a material adverse effect
on the performance of this Agreement or the Indenture or the consummation of any of the transactions contemplated hereby or thereby; or (y) would not, individually or in the aggregate, have a material adverse effect on the Underwriters and
which would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business.
(t) The consolidated historical financial
statements and related notes and schedules of the Company and its consolidated subsidiaries included in the Disclosure Package and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows
of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted therein); the selected financial data set forth under the caption “Selected Consolidated Financial Data” in the Disclosure Package and the Prospectus fairly
present, on
8
the basis stated in the Disclosure Package and the Prospectus, the information included therein; and, to the knowledge of the Company, the consolidated historical financial statements and related
notes and schedules of the Acquired Companies included in the Disclosure Package and the Prospectus present fairly in all material respects the financial position, results of operations and cash flows of the Acquired Companies as of the dates and
for the periods indicated, comply as to form with applicable accounting requirements under the Securities Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis through the periods
involved (except as otherwise noted therein).
(u) The pro forma consolidated financial statements
of the Company and the related notes thereto included or incorporated by reference in the Registration Statement and the Disclosure Package present fairly in all material respects the information contained therein, have been prepared in accordance
with Article 11 of Regulation
S-X
with respect to pro forma financial statements and have been properly presented on the bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. To the Company’s knowledge, the other financial and
non-financial
information relating to the Acquired Companies included in the Registration Statement and the Disclosure Package taken as a whole presents fairly in all material respects the information shown therein.
(v) No action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company, any of its subsidiaries or, to the Company’s knowledge, either of the Acquired Companies or any of their subsidiaries, or its or their property is pending or, to the best knowledge of the Company,
threatened that (i) could be expected, individually or in the aggregate, to have a material adverse effect on the performance of this Agreement or the Indenture or the consummation of any of the transactions contemplated hereby or thereby; or
(ii) could reasonably be expected, individually or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired
Companies and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(w) Each of the Company, its subsidiaries and, to the Company’s
knowledge, each of the Acquired Companies and their subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted, except for such failure that would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
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(x) None of the Company, any of its subsidiaries or, to
the Company’s knowledge, either of the Acquired Companies or any of their subsidiaries, is in violation or default of (i) any provision of its charter or bylaws; (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, except for such violations or defaults which (x) could not,
individually or in the aggregate, be expected to have a material adverse effect on the performance of this Agreement or the Indenture or the consummation of any of the transactions contemplated hereby or thereby; or (y) would not, individually
or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any of its subsidiaries, the Acquired Companies or any of their subsidiaries of
any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, any of its subsidiaries, the Acquired Companies or any of their subsidiaries or any of their respective
properties, as applicable, except for such violations or defaults which (x) could not, individually or in the aggregate, be expected to have a material adverse effect on the performance of this Agreement or the Indenture or the consummation of
any of the transactions contemplated hereby or thereby; or (y) would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company,
its subsidiaries, the Acquired Companies and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(y) To the best of the Company’s knowledge, Ernst & Young LLP, who have expressed their
opinion with respect to the audited financial statements (which term as used in this Agreement includes the related notes thereto) of the Company and its consolidated subsidiaries filed with the Commission as part of the Registration Statement and
incorporated by reference in the Disclosure Package and the Prospectus, are independent registered certified public accountants with respect to the Company as required by the Securities Act and the Exchange Act and the applicable published rules and
regulations thereunder.
(z) To the best of the Company’s knowledge, KPMG US LLP, who have
expressed their opinion with respect to the audited financial statements (which term as used in this Agreement includes the related notes thereto) of the Acquired Companies and its consolidated subsidiaries filed with the Commission as part of the
Registration Statement and incorporated by reference in the Disclosure Package and the Prospectus, are independent registered certified public accountants with respect to the Acquired Companies as required by the Securities Act and the Exchange Act
and the applicable published rules and regulations thereunder.
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(aa) The Company, each of its subsidiaries and, to the
Company’s knowledge, each of the Acquired Companies and each of their subsidiaries, possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any such subsidiary nor, to the Company’s knowledge, either of the Acquired Companies or any of their subsidiaries, has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(bb) Except for the Seller, there are no persons or entities with registration or other similar rights
to require the Company or, to the Company’s knowledge, either of the Acquired Companies, to include any securities in any registration statement filed pursuant to a registration agreement or in any offering made pursuant to any such
registration statement.
(cc) The Company, its subsidiaries and, to the Company’s knowledge,
each of the Acquired Companies and their subsidiaries, have filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not,
individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)) and have paid all taxes
required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or
as would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(dd) Except as set forth in (i) the Second Amended and Restated Revolving Credit Agreement, dated
as of November 2, 2016, among the Company, Bank of America, N.A., and the other lenders party thereto, (ii) the Term Loan Credit Agreement among the Company, Bank of America, N.A., and the other
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lenders party thereto, (iii) the Fourth Amended and Restated Participation Agreement, dated as of June 27, 2013 (as amended, restated, supplemented or otherwise modified from time to
time), among SunTrust Bank and the other parties thereto and (iv) the Fourth Amended and Restated Lease Agreement, dated as of June 27, 2013 (as amended, restated, supplemented or otherwise modified from time to time), among SunTrust Bank
and the other parties thereto, no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock to the Company or to
another subsidiary of the Company, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company,
except as described in or contemplated by the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ee) Each of the Company, its subsidiaries and, to the Company’s knowledge, each of the Acquired
Companies and each of their subsidiaries, has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), and
the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Company, its subsidiaries, the
Acquired Companies and their subsidiaries are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations; the Company and
its subsidiaries and, to the Company’s knowledge, the Acquired Companies and their subsidiaries, have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course)
or to any such plan under Title IV of ERISA.
(ff) The Company maintains (i) effective internal
control over financial reporting as defined in Rule
15d-15
under the Securities Exchange Act of 1934, as amended, and (ii) a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus fairly present the required information and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
12
(gg) Except as disclosed in the Disclosure Package and the
Prospectus, or in any document incorporated by reference therein, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(hh) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, or to the knowledge of the Company, either of the Acquired Companies, or any of the Acquired Companies’ directors or officers, in their capacities as such, to comply with any
applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ii) None of the Company, any of its subsidiaries or, to the Company’s knowledge, either of the
Acquired Companies, any of their subsidiaries, any director, officer, agent, employee or affiliate acting on behalf of the Company, any of its subsidiaries, either of the Acquired Companies or any of their subsidiaries, is aware of any violation, or
has taken any action that would result in a violation, by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the regulations thereunder (the “
FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, all in contravention of the FCPA, and the Company, its subsidiaries
and, to the Company’s knowledge, its affiliates, the Acquired Companies and affiliates of the Acquired Companies have instituted and maintain policies and procedures designed to promote, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(jj) The operations of the Company and, to the Company’s
knowledge, its subsidiaries, each of the Acquired Companies and their subsidiaries, are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental
agency (collectively, the “
Money
Laundering
Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries
or, to the Company’s knowledge, either of the Acquired Companies or any of their subsidiaries, with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.
13
(kk) None of the Company, any of its subsidiaries or, to
the best of the Company’s knowledge, the Acquired Companies, any of their subsidiaries or any director, officer, agent, employee or affiliate of the Company, any of its subsidiaries, the Acquired Companies, or any of their subsidiaries, is an
individual or entity (“
Person
”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“
OFAC
”), the United Nations Security Council, the European Union, or Her Majesty’s Treasury (collectively, “
Sanctions
”), nor is the Company or, to the Company’s
knowledge, either of the Acquired Companies located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds, to any subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person, or in any country or territory, that is the subject of Sanctions, in each case which will result in a
violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(ll) The Acquisition Agreement has been duly authorized, executed and delivered by, and is a valid and
binding agreement of the Company, enforceable in accordance with its terms. The Company has no reason to believe, and has not received notice from Seller, that the Acquisition will not be consummated in all material respects on the terms and by the
date and as contemplated by the Acquisition Agreement and the description thereof set forth in the Disclosure Package and the Prospectus.
(mm) Since the date of the most recent financial statements of the Company included in the Disclosure
Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the
Acquired Companies and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Disclosure Package and the Prospectus (exclusive of any amendment
or supplement thereto).
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 and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
14
from the Company, at a purchase price of 99.248% of the principal amount of the 2022 Notes and 99.183% of the principal amount of the 2027 Notes, plus accrued interest, if any, from
January 31, 2017 to the Closing Date, the principal amount of Notes set forth opposite such Underwriter’s name in Schedule I hereto.
3.
Delivery
and
Payment
. Delivery of and payment for the Notes shall be made at 10:00 A.M., New
York City time, on January 31, 2017, or at such time on such later date (not later than February 7, 2017) as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for the Notes being herein called the “
Closing
Date
”). Delivery of the Notes shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in
same-day
funds to
the account specified by the Company. Delivery of the Notes shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. [Reserved.]
5.
Agreements
. The Company agrees with each Underwriter that:
(a) During the period beginning at the Initial Sale Time and ending on the Closing Date, prior to
amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus, subject to Section 5(c)(other than by way of a filing under the Exchange Act that is incorporated therein), the Company shall furnish to the
Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Representatives reasonably object.
(b) If the delivery of a prospectus is required at any time prior to the expiration of nine months after
the Closing Date in connection with the offering or sale of the Notes and if at such time, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus 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 or then prevailing, as the case may be, not misleading,
or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus,
15
or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances
under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Representatives it is otherwise necessary or advisable to amend or supplement the Registration Statement, the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection
with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to Sections 5(a) and 5(c) hereof), file with the Commission (and use its best
efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the
Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were
made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(c) The Company represents that it has not made, and agrees that, unless it obtains the prior written
consent of the Representatives, it will not make, any offer relating to the Notes that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives
hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to
as a “
Permitted
Free
Writing
Prospectus
”. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and
(ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
(d) The Company will arrange, if necessary, for the qualification of the Notes
for sale by the Underwriters under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the sale of the Notes;
provided
that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
16
(e) The Company will cooperate with the Representatives
and use its best efforts to permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(f) During the period from the date hereof through and including the business day following the Closing
Date, the Company will not, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities in the U.S. public markets issued or guaranteed by the Company and having a tenor of more
than one year.
(g) The Company will not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(h) The Company will not, for so long as any Notes are outstanding, be or become, or be or become owned
by, an
open-end
investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and will not be or
become, or be or become owned by, a
closed-end
investment company required to be registered but not registered thereunder.
(i) The Company agrees to pay the required Commission filing fees relating to the Notes within the time
required by and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
(j) The Company
agrees to pay the costs and expenses relating to the following matters: (i) the reproduction of the Indenture, the issuance of the Notes and the fees of the Trustee; (ii) the preparation, printing or reproduction of any Preliminary
Prospectus and the Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of any Preliminary
Prospectus and the Prospectus, and all amendments or supplements thereto, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes; (iv) the preparation, printing, authentication, issuance and
delivery of certificates for the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of the Notes to the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum, the closing documents and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (vi) any registration or qualification of the Notes for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with presentations to prospective purchasers of the Notes; (viii) the fees and expenses of the
17
Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by
the Company of its obligations hereunder.
6.
Conditions
to
the
Obligations
of
the
Underwriters
. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of each Representation Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Cleary Gottlieb Steen & Hamilton LLP, counsel
for the Company, to furnish to the Representatives its opinion and negative comfort letter, each dated the Closing Date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require.
(b) The Company shall have requested and caused David Vetter, Esq., the Chief Legal Officer of the
Company, to furnish to the Representatives such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably require.
(c) The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Notes, the Indenture, the Preliminary Prospectus and the Prospectus (as amended or supplemented at the
Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the
Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the
Prospectus and any amendment or supplement thereto, any Issuer Free Writing Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as
of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
18
(ii) since the date of the most recent financial
statements included in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(e) On the date of this Agreement and on the Closing Date, the Seller shall
have furnished to the Representatives a certificate of the Seller, signed by the chief financial officer of the Seller, in form and substance reasonably satisfactory to the Representatives.
(f) At the Execution Time and the Closing Date, the Company shall have requested and caused each of
Ernst & Young LLP and KPMG USA LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in the form and substance satisfactory to the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the
Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or
(ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company, its subsidiaries, the Acquired Companies and their
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Notes as contemplated by the Disclosure Package and
the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Indenture shall be
executed in a form reasonably satisfactory to the Underwriters.
(i) Subsequent to the Execution
Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in § 3(a)(62) of the Exchange Act) or any notice given
of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
19
(j) The Notes shall be eligible for clearance and
settlement through The Depository Trust Company.
(k) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the
Underwriters, Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, on the Closing Date.
7.
Reimbursement
of
Expenses
. If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will promptly reimburse the Underwriters severally through the Representatives for all
out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the
Notes.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission to state therein of a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus or the Prospectus or any Issuer Free Writing
Prospectus (or in any supplement or amendment to any of the foregoing), or arise out of or
20
are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability
or action;
provided,
however
, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement to any of the foregoing, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of any Underwriters through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the Registration Statement, any
Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus (or in any amendment or supplement to any of the foregoing). This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the cover page regarding the delivery of the Notes, and, under the heading “Underwriting”, the paragraph related to stabilization, short sales and syndicate
covering transactions in the Preliminary Prospectus and the Prospectus, constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Preliminary Prospectus and the Prospectus (or in any amendment or
supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but
the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which
21
case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided,
however
, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) 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.
(d) In the event that the
indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “
Losses
”) to which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Notes;
provided,
however
, that in no case shall any Underwriter (except
as may be provided in any agreement among the Underwriters relating to the offering of the Notes) be responsible for any amount in excess of the purchase discount or commission applicable to the Notes purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of
the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable
22
considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total purchase discounts and commissions in each case set forth on the cover of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge,
information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act and
each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9.
Default
by
an
Underwriter
. If any one or more Underwriters shall fail to purchase and
pay for any of the Notes agreed to be purchased by such Underwriter hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the principal amount of Notes set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Notes set forth opposite the names of all the
remaining Underwriters) the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Notes set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Notes, and if such nondefaulting Underwriters do not purchase all the Notes, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company or any nondefaulting Underwriter for damages occasioned by its default hereunder.
23
10.
Termination
. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Notes, if at any time prior to such time (i) trading in the Company’s Common Stock shall have been suspended by the
Commission or the NASDAQ Stock Market or trading in securities generally on the New York Stock Exchange or the NASDAQ Stock Market shall have been suspended or limited or minimum prices shall have been established on such exchange; (ii) a
banking moratorium shall have been declared by federal, Florida or New York State authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the
Preliminary Prospectus and the Prospectus (exclusive of any amendment or supplement thereto).
11.
No
Advisory
or
Fiduciary
Responsibility
. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes
and any related discounts and commissions, is an
arm’s-
length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of an
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may
have against the several Underwriters with respect to any breach of alleged breach of agency or fiduciary duty.
24
12.
Representations
and
Indemnities
to
Survive
. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or the Company or any of the officers, directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Notes. The
provisions of Sections 5(j), 7, 8 and 15 hereof shall survive the termination or cancellation of this Agreement.
13.
Notices
. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied
and confirmed to the parties hereto as follows:
If to the Representatives:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza,
NY1-050-12-01
New
York, New York 10020
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Telecopy No: (646)
855-5958
Citigroup Global Markets Inc.
388 Greenwich Street
New York,
New York 10013
Attention: General Counsel
Telecopy No: (646)
291-1469
and
J.P. Morgan Securities LLC
383 Madison Avenue, 3
rd
Floor
New York, New York 10179
Attention: High Grade Syndicate Desk – 3
rd
Floor
Telecopy No.: (212)
622-8133
with a copy to:
Davis
Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Derek J. Dostal, Esq.
Telecopy No.: (212)
701-5322
If to the Company:
Tech Data
Corporation
5350 Tech Data Drive
Clearwater, Florida 33760
25
Attention: Executive Vice President, Chief Legal Officer and Secretary
Telecopy No.: (727)
538-7803
With a copy to:
Cleary Gottlieb
Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
Attention: Nicolas Grabar, Esq.
Sung K. Kang, Esq.
Telecopy No.: (212)
225-3999
14.
Su
ccessors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
15.
Applicable
Law
. This Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the State of New York.
16.
Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same instrument.
17.
Headings
. The section
headings used herein are for convenience only and shall not affect the construction hereof.
18.
Definitions
. The terms which follow, when used in this Agreement, shall have the meanings indicated.
“
Affiliate
” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under
common control with such Person.
“
Business
Day
” shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York.
“
Common
Stock
” shall mean
non-assessable
shares of common stock, par value
$0.0015 per share, of the Company.
“
Investment
Company
Act
” shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated thereunder.
“
Person
” means an individual,
corporation, partnership, limited liability company, association, trust or other entity or organization including a government or political subdivision or an agency or instrumentality thereof.
26
“
Trust
Indenture
A
ct
” shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
27
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement between the Company and the several Underwriters.
|
|
|
|
|
Very truly yours,
|
|
|
|
TECH DATA CORPORATION
|
|
|
|
|
By:
|
|
/s/ Charles V. Dannewitz
|
|
|
|
Name: Charles V. Dannewitz
|
|
|
|
Title: Executive Vice President,
Chief Financial Officer
|
[
Signature Page to Underwriting Agreement
]
The foregoing Agreement is hereby confirmed and accepted by the Representatives as of the date
first above written.
|
|
|
|
|
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
|
|
|
|
|
By:
|
|
/s/ Laurie Campbell
|
|
|
|
Name:
|
|
Laurie Campbell
|
|
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
|
|
|
By:
|
|
/s/ Adam D. Bordner
|
|
|
|
Name:
|
|
Adam D. Bordner
|
|
|
|
Title:
|
|
Vice President
|
|
|
|
|
|
|
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
|
By:
|
|
/s/ Stephen L. Sheiner
|
|
|
|
Name:
|
|
Stephen L. Sheiner
|
|
|
|
Title:
|
|
Executive Director
|
Acting as Representatives of the several Underwriters named in the attached Schedule I.
[
Signature Page to Underwriting Agreement
]
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
Underwriters
|
|
Aggregate
Principal
Amount of
2022 Notes to
be Purchased
|
|
|
Aggregate
Principal
Amount of
2027 Notes to
be Purchased
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
|
|
$
|
175,000,000
|
|
|
$
|
175,000,000
|
|
|
Incorporated
|
|
|
|
|
|
|
|
|
|
Citigroup Global Markets Inc.
|
|
|
87,500,000
|
|
|
|
87,500,000
|
|
|
J.P. Morgan Securities LLC
|
|
|
87,500,000
|
|
|
|
87,500,000
|
|
|
MUFG Securities Americas Inc.
|
|
|
28,750,000
|
|
|
|
28,750,000
|
|
|
PNC Capital Markets LLC
|
|
|
26,250,000
|
|
|
|
26,250,000
|
|
|
Scotia Capital (USA) Inc.
|
|
|
26,250,000
|
|
|
|
26,250,000
|
|
|
BNP Paribas Securities Corp.
|
|
|
17,500,000
|
|
|
|
17,500,000
|
|
|
Mizuho Securities USA Inc.
|
|
|
17,500,000
|
|
|
|
17,500,000
|
|
|
UniCredit Capital Markets LLC
|
|
|
13,750,000
|
|
|
|
13,750,000
|
|
|
Skandinaviska Enskilda Banken AB (publ)
|
|
|
7,500,000
|
|
|
|
7,500,000
|
|
|
TD Securities (USA) LLC
|
|
|
7,500,000
|
|
|
|
7,500,000
|
|
|
Raymond James & Associates, Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
SCHEDULE II
Issuer Free Writing Prospectuses
1. Final Term Sheet, dated January 24, 2017, filed by the Company with the Commission on January 24, 2017.
Exhibit
4-A
TECH DATA CORPORATION
OFFICER’S CERTIFICATE
January 31, 2017
Charles
V. Dannewitz, Executive Vice President, Chief Financial Officer of Tech Data Corporation, a Florida corporation (the “
Company
”), pursuant to Sections 2.01, 3.01, 3.03 and 16.01 of the Indenture, dated as of January 17,
2017, between the Company and MUFG Union Bank N.A., as Trustee (the “
Indenture
”), hereby certifies that:
1. He has read all provisions in the Indenture relating to conditions precedent to the authentication and delivery of
the Company’s Securities (as defined in the Indenture) and the definitions in the Indenture relating thereto and has made such investigation as he considered necessary in connection with the delivery hereof.
2. 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 provisions in the Indenture relating to conditions precedent to the authentication and delivery of Securities under the Indenture have been complied with.
3. In his opinion, such provisions have been complied with.
4. Pursuant to the resolutions attached hereto as
Annexes
A-1
and
A-2
adopted by the Board of Directors of the Company on January 17, 2017 and by the Pricing Committee of the Company on January 24, 2017, respectively, the 3.700% Senior Notes due 2022 (the
“
2022 Notes
”) and the 4.950% Senior Notes due 2027 (the “
2027 Notes
” and together with the 2022 Notes, the “
Notes
”) to be issued under the Indenture will have the following terms:
(a) The 2022 Notes will be in an initial aggregate principal amount of $500,000,000 and the 2027 Notes will be in an
aggregate principal amount of $500,000,000 and will rank on a
pari
passu
basis with all of our other senior unsecured unsubordinated indebtedness from time to time outstanding;
(b) The Notes will not be issued as Original Issue Discount Securities (as defined in the Indenture);
(c) The Notes will have the respective terms and will be substantially in the respective forms set forth in the specimen
Notes (attached hereto as
Annex
B-1
and
Annex
B-2
); and
(d) The Notes will be issued in the form of one of more Global Securities and The Depository Trust Company will be the
depositary therefor.
[
Signature page follows
]
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first above written.
|
|
|
|
|
/s/ Charles V. Dannewitz
|
|
Name:
|
|
Charles V. Dannewitz
|
|
Title:
|
|
Executive Vice President, Chief Financial
Officer
|
[
Signature page of Officer Certificate Pursuant to Indenture
]
Annex
A-1
Extract from Resolutions
of the Board of Directors of Tech Data Corporation
Dated on January 17, 2017
AUTHORIZATION OF
SHELF
REGISTRATION STATEMENT AND DEBT OFFERINGS
WHEREAS
, Tech Data Corporation (the “Corporation”) has entered into the Interest Purchase
Agreement, dated as of September 19, 2016, between the Corporation and Avnet, Inc. providing for the acquisition of the Technology Solutions business of Avnet, Inc. (the “Acquisition”);
WHEREAS
, the Board of Directors (the “Board”) of the Corporation has determined it to be advisable and in the best interests of the
Corporation in connection with the Acquisition, to issue and sell from time to time up to an aggregate amount of $1,000,000,000 (or its equivalent at the time of issuance in any other currency) of
non-convertible
debt securities, senior or subordinated, consisting of debentures, notes and/or other evidences of indebtedness representing secured or unsecured obligations of the Corporation (the “Debt
Securities”);
WHEREAS
, the Board has determined it to be advisable and in the best interests of the Corporation to delegate to a pricing
committee the determination and approval of the terms and conditions of any such Debt Securities in light of prevailing market conditions from time to time and such other factors as such committee may deem relevant.
Issuance of Debt Securities
NOW, THEREFORE BE IT RESOLVED
, that in addition to all other authorizations for the borrowing of money or issuance or sale of debt
securities heretofore granted and outstanding, the Corporation, be, and hereby is, authorized to issue Debt Securities in one or more transactions for aggregate proceeds of up to $1,000,000,000 (or its equivalent at the time of issuance in any other
currency) on such terms and conditions, and in one or more public, private, syndicated or other negotiated offerings or transactions, as may be determined from time to time by the Pricing Committee established in these resolutions.
Pricing Committee
RESOLVED
, that a pricing committee (the “Pricing Committee”) is hereby established and authorized to determine the terms of
any Debt Securities issued pursuant to these resolutions (including the interest rate, maturity date, ranking and any mandatory or optional redemption or repurchase dates) and the price, or range of prices, at which any Debt Securities are
A1-1
to be sold and issued from time to time, together with all such other terms and conditions of such Debt Securities, which determinations by the Pricing Committee shall have the same force and
effect as determinations made by the Board.
RESOLVED
, that Robert M. Dutkowsky, Board member and Chief Executive Officer, Charles
V. Dannewitz, Executive Vice President and Chief Financial Officer and Scott W. Walker, Corporate Vice President, Treasurer, shall serve as the Pricing Committee; that the presence of any two members of the Pricing Committee at any meeting of
the Pricing Committee shall constitute a quorum for the transaction of business; and that the vote of any two members of the Pricing Committee at which a quorum is present shall be the act of the Pricing Committee.
Shelf Registration Statements: Other Filings and Approvals
RESOLVED
, that Robert M. Dutkowsky, Chief Executive Officer, Charles V. Dannewitz, Executive Vice President, Chief Financial
Officer, Scott W. Walker, Corporate Vice President, Treasurer, Jeffrey Taylor, Senior Vice President, Controller and David R. Vetter, Executive Vice President, Chief Legal Officer and Secretary of the Corporation (collectively, the “Authorized
Officers”) be, and each of them hereby is, authorized to prepare and file with the Securities and Exchange Commission and/or the Financial Industry Regulatory Authority one or more Registration Statements on Form
S-3
or
S-4
(each, a “Registration Statement”) for Debt Securities to be offered by the Corporation, whether on a delayed or continuous basis pursuant to Rule
415 or otherwise or for one or more registered exchange offers or the secondary market resale of Debt Securities previously placed by the Corporation in any private or other negotiated transaction, in each case, pursuant to the Securities Act of
1933, as amended (the “Securities Act”), including a prospectus and any and all exhibits and other documents relating thereto and any and all amendments or supplements to each such Registration Statement, all in such forms as the officers
and directors who execute the same may deem necessary or appropriate.
RESOLVED
, that the designation of any of the Authorized
Officers of the Corporation as agent for service of process on the Corporation, with the powers conferred upon him or her as are conferred upon such agent by the Securities Act and the rules and regulations thereunder be, and the same hereby is,
ratified and approved in all respects.
RESOLVED
, that the Authorized Officers be, and each of them hereby is, authorized, in the
name and on behalf of the Corporation, to request acceleration of each Registration Statement (if so required under the Securities Act) so as to cause it to become effective under the Securities
A1-2
Act on such date as any such Authorized Officer may determine and to execute such other instruments and do all such other things as may be necessary or advisable, in order that each such
Registration Statement shall be filed and become and remain effective under the Securities Act.
RESOLVED
, that the Authorized
Officers be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to take any and all action that such Authorized Officer(s) may deem necessary or advisable in order to effect the registration or qualification (or
exemption therefrom) of the securities being registered under any Registration Statement under the securities or Blue Sky laws of any of the states and other jurisdictions of the United States, and any other jurisdictions outside the United States
in which such securities will be distributed or to comply with any applicable requirements and regulations of the Federal, state, local and foreign administrative or governmental agencies in each jurisdiction where the Corporation or any of its
subsidiaries conducts any business or owns any property or assets, and in connection therewith to execute, acknowledge, verify, deliver, file and publish all such applications, reports, resolutions and other papers and instruments as may be required
under such laws and to make any filings that may be required by the Financial Industry Regulatory Authority.
Agreements and Other
Documentation for Sale of Debt Securities
RESOLVED
, that the Authorized Officers of the Corporation be, and each hereby
is, authorized to do or cause to be done, in the name and on behalf of the Corporation, any and all such acts and things, and to execute, deliver and file, in the name and on behalf of the Corporation, any and all such agreements (including one or
more underwriting, purchase, placement, subscription, selling agent or other distribution agreements, as applicable), applications, certificates, instructions, receipts and other documents and instruments (including if so authorized by the Pricing
Committee any registration rights agreements with respect to Debt Securities sold in any private or negotiated transaction) as any such Authorized Officer may deem necessary, advisable or appropriate in order to issue and sell any of the Debt
Securities; and that the Corporation be, and it hereby is, authorized to enter into and perform its obligations under any such agreement or other document or instrument.
Stock Exchange Application
RESOLVED
, that the Authorized Officers are, and each of them hereby is, authorized, in the name and on behalf of the Corporation to
apply for the listing of any such Debt Securities as the Pricing Committee may deem appropriate on any U.S. or
non-U.S.
securities exchange, and to take all such actions and to prepare, execute and file or
cause to be filed any and all certificates, applications and other documents as any Authorized Officer may deem necessary with respect thereto.
A1-3
Indenture and Other Instruments
RESOLVED
, that the Corporation be, and it hereby is, authorized to enter into and perform its obligations under one or more indentures,
supplemental indentures, fiscal and paying agent agreements or other similar agreements with respect to the issuance of any Debt Securities, and any amendment thereto between the Corporation, as issuer or borrower, as the case may be, and any
trustee or agent approved by an Authorized Officer (each, an “Instrument”); that any Authorized Officer be, and each hereby is, authorized on behalf of the Corporation to execute and deliver any such Instrument and any amendments thereto,
in such form as the person executing the same on behalf of the Corporation shall approve.
RESOLVED
, that the Corporation be, and it
hereby is, authorized to enter into and perform its obligations under any note or other evidence of the Debt Securities approved by an Authorized Officer, and that any Authorized Officer be, and each hereby is, authorized to issue, execute (manually
or by facsimile) and deliver in the name and on behalf of the Corporation such note or other evidence of the Debt Securities, in such form as the Authorized Officer executing the same on behalf of the Corporation shall approve and to affix its
corporate seal thereto.
RESOLVED
, that the Authorized Officers are, and each of them hereby is, authorized and empowered to qualify
any applicable Instrument for Debt Securities to be offered to the public under the Trust Indenture Act of 1939, as amended.
Appointment of Trustees and Other Agents
RESOLVED
, that the Authorized Officers be, and each of them hereby is, authorized to appoint trustees, paying agents, transfer agents,
registrars, listing agents, depositaries or clearing agents, and other agents with respect to the Debt Securities; that the Authorized Officers be, and each hereby is, authorized to make such representations and enter into such agreements necessary
or appropriate to evidence the same on behalf of the Corporation, and any amendment thereto, in such form as the Authorized Officer executing the same on behalf of the Corporation shall approve; and that, in the absence of such appointment, the
Corporation be, and hereby is, authorized to act in any of the above capacities to the extent permitted by law and to take such actions as called for by the Instruments governing the relevant Debt Securities.
A1-4
RESOLVED
, that the Authorized Officers be, and each of them hereby is, authorized, in the
name and on behalf of the Corporation, to execute and deliver such other agreements, documents, certificates and instruments as may be required by any trustee or other agent in connection with the applicable Instrument or the Debt Securities, or
required in connection with the offer, sale or performance thereof.
Additional Actions
RESOLVED
, that the Authorized Officers be, and each of them with full power to act without the others hereby is, authorized and
empowered to do any and all acts and things and to sign, seal, execute, acknowledge, file, deliver and record all papers, instruments, documents and certificates and to pay all charges, fees, taxes and other expenses, from time to time necessary,
desirable or appropriate to be done, signed, sealed, executed, acknowledged, filed, delivered, recorded or paid, under any applicable law or otherwise, in the name and on behalf of the Corporation, and to certify as having been adopted by the Board
any form of resolution required by any law, regulation or agency appropriate to effectuate the purpose and intent of these resolutions or any of them and such other agreements and documents as may be executed by any Authorized Officer pursuant to
authorization granted in these resolutions or to carry out the transactions contemplated thereby; that the Authorized Officers be, and each of them with full power to act without the others hereby is, authorized and empowered to retain, in the name
and on behalf of the Corporation, such financial advisors, legal counsel and such other advisors, consultants, or experts necessary or appropriate to carry out the actions contemplated in these resolutions; to secure any appropriate advice and
opinions from such advisors, consultants or experts; to pay all fees and expenses incurred by the Corporation in connection with the issuance, offering and sale of Debt Securities, including, but not limited to, all fees and expenses appropriate to
effectuate the purpose and intent of these resolutions or any of them and the issuance of Debt Securities and such other agreements and documents as may be executed by any Authorized Officer pursuant to authorization granted in these resolutions or
to carry out the transactions contemplated thereby; that each Authorized Officer may, by a written
power-of-attorney,
authorize any other officer, employee or agent of,
or counsel to, the Corporation to take any and all actions and to execute and deliver any and all certificates, documents and instruments referred to in these resolutions in place of or on behalf of such Authorized Officer, with full power as if
such Authorized Officer were taking such action himself; and that any or all actions heretofore taken by any officer or officers of the Corporation with respect to any matter referred to or contemplated by any of the these resolutions be, and hereby
are, ratified and confirmed as the act and deed of the Corporation.
A1-5
Further Resolutions
RESOLVED
, that in connection with the transactions contemplated in the foregoing resolutions, the Authorized Officers be, and each of
them hereby is, authorized, in the name and on behalf of the Corporation, to certify any more formal or detailed resolutions as such officers may deem necessary or appropriate to effectuate the intent of the foregoing resolutions and that such
officers be, and each of them hereby is, authorized and directed to annex such resolutions to these resolutions, and thereupon such resolutions shall be deemed adopted as and for the resolutions of this Board as if set forth in these resolutions.
A1-6
Annex
A-2
Extract from Resolutions of the
Pricing Committee of Tech Data Corporation
Dated on January 24, 2017
WHEREAS
, on January 17, 2017, the Board authorized, pursuant to resolutions adopted by the Board among other things, the authority to file with
the Securities and Exchange Commission (the “
SEC
”) a shelf registration statement and related filings in respect of debt securities (the “
Debt Securities
”) of the Corporation;
WHEREAS
, on January 17, 2017, the Corporation filed with the SEC a registration statement on Form
S-3
(No.
333-215579)
(the “
Registration Statement
”);
WHEREAS
, on January 17, 2017, the Board
authorized, pursuant to resolutions adopted by the Board (the “
Financing Resolutions
”) among other things, the authority to issue and sell from time to time up to $1,000,000,000 of the Debt Securities pursuant to the Registration
Statement;
WHEREAS
, the Financing Resolutions authorized the Pricing Committee to determine the interest rate, maturity date, ranking and any
mandatory or optional redemption or repurchase dates for any such Debt Securities, and the price, or range of prices, at which any such indebtedness may be sold or placed and issued from time to time, together with all such other terms and
conditions of such indebtedness and the offering or placement and sale thereof; and
WHEREAS
, the Pricing Committee deems it advisable and in the
best interests of the Corporation to adopt the following resolutions with respect to the issuance and sale of the Debt Securities.
NOW
THEREFORE IT IS,
RESOLVED
, that the Pricing Committee has determined that it is in the best interests of the Corporation and
its stockholders to authorize the issuance and sale of the Corporation’s 3.700% Senior Notes due 2022 ( the “
2022 Notes
”) and the Corporation’s 4.950% Senior Notes due 2027 (the “
2027 Notes”
and together
with the
2022 Notes
, the “
Notes
”) pursuant to the Corporation’s Indenture, dated as of January 17, 2017 (the “
Indenture
”), between the Corporation and MUFG Union Bank N.A., as Trustee (the
“
Trustee
”), substantially in the form filed as Exhibit
4-A
to the Registration Statement; and
FURTHER RESOLVED
, that the Pricing Committee hereby approves and authorizes the issuance and sale to the Underwriters (as defined below)
of an aggregate principal amount of $1,000,000,000 of the Notes at a price and with such terms as set forth in the term sheet containing the final terms of the Notes attached hereto as
Exhibit A
, with such changes therein, additions thereto
and deletions therefrom as may be approved by the Chief Financial Officer and set forth in an Officer’s Certificate (as defined in the Indenture) in accordance with the Indenture; and
A2-1
FURTHER RESOLVED
, that the Underwriting Agreement, dated January 24, 2017 (the
“
Underwriting Agreement
”), between the Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as representatives of the underwriters named in the
Underwriting Agreement (the “
Underwriters
”), providing for the purchase and sale of $1,000,000,000 aggregate principal amount of the Notes substantially in the form submitted to the Pricing Committee, be and they hereby are, in all
respects approved, with such changes therein, additions thereto and deletions therefrom as may be approved by any Authorized Officer (as defined in the Financing Resolutions); and
FURTHER RESOLVED
, that (i) payment of the principal of, and interest on, the Notes will be made at the Corporate Trust Office (as
defined in the Indenture), or any Place of Payment (as defined in the Indenture), in accordance with the Indenture and the Notes, (ii) the Notes may be presented for registration of transfer or exchange at the Corporate Trust Office of the
Trustee or any Place of Payment and (iii) notices and demands to or upon the Corporation in respect of the Notes may be sent in writing and mailed, delivered, or telefaxed to Tech Data Corporation, 5350 Tech Data Drive, Clearwater, Florida
33760, Attention: Executive Vice President, Chief Legal Officer and Secretary, Telecopy No.: (727)
538-7803;
and
FURTHER RESOLVED
, that each of the Notes will be represented by one or more global notes that will be deposited with and registered in
the name of The Depository Trust Corporation or its nominee; and
FURTHER RESOLVED
, that in connection with the transactions
contemplated in the foregoing resolutions, the Authorized Officers (as defined in the Financing Resolutions) be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to take, or to cause to be taken, any and all
actions any such Authorized Officer may deem necessary or appropriate, and to certify any more formal or detailed resolutions as such officers may deem necessary or appropriate, in each case, to effectuate the intent of the foregoing resolutions and
that such officers be, and each of them hereby is, authorized and directed to annex any such resolutions to these resolutions, and thereupon such resolutions shall be deemed adopted as and for the resolutions of this Pricing Committee as if set
forth at length in these resolutions; and
FURTHER RESOLVED
, that any actions previously taken by any officer, employee or agent of
the Corporation in connection with the matters set forth in the foregoing resolutions and the transactions contemplated thereby be, and hereby are, in all respects approved, ratified and confirmed.
A2-2
Exhibit A
Term Sheet
Filed
Pursuant to Rule 433 under the Securities Act of 1933
Registration Statement
No. 333-215579
Issuer Free Writing Prospectus dated January 24, 2017
Tech Data Corporation
Pricing Term Sheet
This pricing term
sheet should be read in conjunction with the preliminary prospectus supplement dated January 24, 2017 and the accompanying prospectus. The information in this pricing term sheet supersedes the information in the preliminary prospectus
supplement and the accompanying prospectus to the extent inconsistent with the information in the preliminary prospectus supplement and the accompanying prospectus. In all other respects, this pricing term sheet is qualified in its entirety by
reference to the preliminary prospectus supplement and accompanying prospectus.
$500,000,000 3.700% Senior Notes due 2022
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Issuer:
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Tech Data Corporation
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Title of Securities:
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3.700% Senior Notes due 2022
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Public Offering Price:
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99.848%
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Aggregate Principal Amount Offered:
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$500,000,000
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Net Proceeds Before Expenses:
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$496,240,000
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Trade Date:
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January 24, 2017
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Settlement Date*:
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January 31, 2017 (T+5)
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Maturity Date:
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February 15, 2022
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Interest Rate:
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3.700% per annum, subject to adjustment upon the occurrence of the events described under “Description of the Notes—Interest Rate Adjustment” in the preliminary prospectus supplement.
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Yield to Maturity:
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3.733%
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Spread to Benchmark Treasury:
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T+180 bps
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Benchmark Treasury:
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2.000% due December 31, 2021
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Benchmark Treasury Price and Yield:
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100-10;
1.933%
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Interest Payment Dates:
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February 15 and August 15 of each year, beginning on August 15, 2017
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Make-Whole Call:
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Prior to January 15, 2022 at T+30 bps
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Par Call:
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On or after January 15, 2022
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Special Mandatory Redemption:
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101% of principal plus accrued and unpaid interest, if the Proposed Acquisition (as defined in the preliminary prospectus supplement)
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A2-3
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has not occurred on or prior to the earlier of (i) June 19, 2017 (provided that, if the termination date of the Acquisition Agreement (as defined in the preliminary prospectus supplement) is extended, this date will also
be extended to the same extended termination date, but in no case will this date be extended beyond September 15, 2017) and (ii) the date the Acquisition Agreement is terminated.
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CUSIP / ISIN:
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878237 AG1 / US878237AG14
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Anticipated Ratings**:
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Baa3 (Negative Outlook) (Moody’s) /
BBB-
(Negative Outlook) (S&P)
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Joint Book-Running Managers:
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Merrill Lynch, Pierce, Fenner & Smith
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Incorporated
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Citigroup Global Markets Inc.
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J.P. Morgan Securities LLC
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Co-Managers:
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MUFG Securities Americas Inc.
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PNC Capital Markets LLC
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Scotia Capital (USA) Inc.
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BNP Paribas Securities Corp.
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Mizuho Securities USA Inc.
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UniCredit Capital Markets LLC
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Skandinaviska Enskilda Banken AB (publ)
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TD Securities (USA) LLC
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Raymond James & Associates, Inc.
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$500,000,000 4.950% Senior Notes due 2027
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Issuer:
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Tech Data Corporation
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Title of Securities:
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4.950% Senior Notes due 2027
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Public Offering Price:
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99.833%
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Aggregate Principal Amount Offered:
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$500,000,000
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Net Proceeds Before Expenses:
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$495,915,000
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Trade Date:
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January 24, 2017
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Settlement Date*:
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January 31, 2017 (T+5)
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Maturity Date:
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February 15, 2027
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Interest Rate:
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4.950% per annum, subject to adjustment upon the occurrence of the events described under “Description of the Notes—Interest Rate Adjustment” in the preliminary prospectus supplement.
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Yield to Maturity:
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4.971%
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Spread to Benchmark Treasury:
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T+250 bps
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Benchmark Treasury:
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2.000% due November 15, 2026
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Benchmark Treasury Price and Yield:
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95-29+;
2.471%
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Interest Payment Dates:
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February 15 and August 15 of each year, beginning on August 15, 2017
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A2-4
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Make-Whole Call:
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Prior to November 15, 2026 at T+40 bps
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Par Call:
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On or after November 15, 2026
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Special Mandatory Redemption:
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101% of principal plus accrued and unpaid interest, if the Proposed Acquisition (as defined in the preliminary prospectus supplement) has not occurred on or prior to the earlier of (i) June 19, 2017 (provided that, if the
termination date of the Acquisition Agreement (as defined in the preliminary prospectus supplement) is extended, this date will also be extended to the same extended termination date, but in no case will this date be extended beyond
September 15, 2017) and (ii) the date the Acquisition Agreement is terminated.
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CUSIP / ISIN:
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878237 AH9 / US878237AH96
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Anticipated Ratings**:
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Baa3 (Negative Outlook) (Moody’s) /
BBB-
(Negative Outlook) (S&P)
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Joint Book-Running Managers:
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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Citigroup Global Markets Inc.
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J.P. Morgan Securities LLC
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Co-Managers:
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MUFG Securities Americas Inc.
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PNC Capital Markets LLC
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Scotia Capital (USA) Inc.
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BNP Paribas Securities Corp.
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Mizuho Securities USA Inc.
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UniCredit Capital Markets LLC
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Skandinaviska Enskilda Banken AB (publ)
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TD Securities (USA) LLC
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Raymond James & Associates, Inc.
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Note: A securities rating is not a recommendation to buy, sell or hold a security and may be subject to revision or withdrawal at any time.
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The issuer expects that delivery of the notes will be made to investors on or about January 31, 2017, which will be the fifth business day following the date of this pricing term sheet (such settlement being
referred to as “T+5”). Under Rule
15c6-1
under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in three business days, unless the parties to any
such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of the prospectus supplement or the next succeeding business day will be required, by virtue of the fact that the notes initially settle in T+5, to
specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes on the date of the prospectus supplement of the next succeeding business day should consult
their advisors.
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The issuer has filed a registration statement (including a prospectus supplement and accompanying prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the prospectus supplement and accompanying prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send to
you the prospectus if you request it by calling Merrill Lynch, Pierce, Fenner & Smith Incorporated at (800)
294-1322
(toll free), Citigroup Global Markets Inc. at (800)
831-9146
(toll free) or J.P. Morgan Securities LLC at (212)
834-4533
(collect).
A2-5
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE
DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
A2-6
Annex
B-1
GLOBAL SECURITY
UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
TECH DATA CORPORATION
3.700%
Senior Note due 2022
PRINCIPAL AMOUNT: $500,000,000
CUSIP:
878237 AG1
No.:
R-001
TECH DATA CORPORATION, a Florida corporation (the “Company”, which term includes any successor thereto under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or registered assigns, at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the
Trustee, the principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) (or such other principal amount as shall be set forth in the Schedule of Increases or Decreases in Note attached hereto) on February 15, 2022, in the coin or currency of
the United States, and to pay interest thereon from January 31, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on February 15 and August 15 of each
year, beginning on August 15, 2017, on said principal sum at said office or agency, in like coin or currency, at the rate of 3.700% per annum, on the basis of a
360-day
year consisting of twelve
30-day
months, until the principal hereof is paid or duly provided for or made available for payment and (to the extent that the payment of such interest shall be legally enforceable) at such rate on any overdue
principal and premium and on any overdue installment of interest;
provided
that payment of interest may be made at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the
Register or by wire transfer as provided in the Indenture.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the 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 Record Date for such interest, which shall be
February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
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Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as, more fully provided in said Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the Trustee under the Indenture referred to on the reverse hereof.
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IN WITNESS WHEREOF, TECH DATA CORPORATION has caused this Note to be duly executed.
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TECH DATA CORPORATION
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By:
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Name:
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Title:
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B1-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date of authentication: January 31, 2017
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MUFG UNION BANK N.A.
as
Trustee
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By:
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Authorized Signatory
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B1-4
REVERSE OF NOTE
TECH DATA CORPORATION
3.700%
Senior Note due 2022
General
This
Note is one of a duly authorized issue of securities of the Company (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of January 17, 2017
(the “Indenture”), duly executed and delivered by the Company to MUFG Union Bank, N.A., as Trustee (the “Trustee,” which term includes any successor trustee), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the 3.700% Senior Notes due 2022 of the Company (the “Notes”), limited in aggregate principal amount to
$500,000,000;
provided
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however
, that the Company, without notice to or consent of the Holders, may issue additional Securities of this series and thereby increase such principal amount in the future, on the same terms and conditions
(except for issue date, public offering price and, if applicable, the date from which interest accrues and the first Interest Payment Date). Any additional Securities shall be issued under a separate CUSIP number unless: (i) the additional
notes and the outstanding notes of the original series are treated as part of the same “issue” of debt instruments for U.S. Federal income tax purposes, (ii) such additional notes have no more than a de minimis amount of original
issue discount for U.S. federal income tax purposes or (iii) such issuance would constitute a “qualified reopening” for U.S. federal income tax purposes.
Interest shall be computed on the basis of a
360-day
year consisting of twelve
30-day
months. The Company shall pay interest on overdue principal, premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this Note. If a payment date is not
a Business Day as defined in the Indenture at a Place of Payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions that provide that the Company and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of amending any provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of such series to be affected with the written consent of the Holders of a majority in
B1-5
principal amount of the Outstanding Securities of such series affected by such amendment voting separately;
provided
that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment may not: (i) extend the Stated Maturity of the principal of, or any installment of interest on, such Holder’s Security, or reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or materially adversely affect the economic terms of the Holder’s right to convert or exchange any Security as may be provided in the Indenture; (ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of the Indenture or certain Defaults hereunder and their consequences
provided for in the Indenture; (iii) modify any of the provisions of the Indenture governing amendments or waivers with the consent of Holders except to increase any such percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or (iv) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee.
It is also provided in the Indenture that, subject to certain conditions and exceptions, the Holders of a majority in aggregate principal
amount of a series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past Default or Event of Default hereunder and its consequences except a Default in the payment of interest or
any premium on or the principal of the Securities of such series or a Default in respect of a covenant or provision of the Indenture that cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series.
Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights under the Indenture, respectively; provided that no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note in the manner, at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Notes will be issued in fully registered form without coupons in minimum denominations of $2,000 and
multiples of $1,000 in excess thereof and are transferable and exchangeable at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Company maintained for such purpose, which shall initially be the Corporate Trust
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Office of the Trustee, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company,
the Trustee and any agent of the Company or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions hereof, interest hereon, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the
Indenture or any indenture supplemental thereto or in any Note, or because of any indebtedness evidenced thereby, shall be had against any incorporator as such, or against any past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any penalty or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein that are
defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without
regard to conflicts of laws principles thereof) shall govern this Note.
Optional Redemption
At any time prior to the Par Call Date (as defined below), the Company shall have the right at its option to redeem the Notes, in whole or from
time to time in part, at a Redemption Price equal to the greater of:
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(i)
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100% of the principal amount of the Notes to be redeemed; or
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(ii)
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the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the Par Call
Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day
year consisting of twelve
30-day
months) at a rate equal to the sum of the applicable
Treasury Rate plus 30 basis points, together with, accrued and unpaid interest on the principal amount of the Notes to be redeemed to, but not including, the Redemption Date.
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At any time on or after the Par Call Date, the Company shall have the right at its option to redeem the Notes, at any time in whole or from
time to time in part, at a
B1-7
Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus, accrued and unpaid interest, if any, on the principal amount of the Notes to be redeemed to, but
excluding, the Redemption Date.
For the purposes of determining the Redemption Price, “Treasury Rate” means, with respect to
any Redemption Date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or
any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the
two published maturities most closely corresponding to the applicable Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest
month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable
Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate shall be
calculated on the third business day preceding the redemption date.
“Comparable Treasury Issue” means the United States
Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming, for this purpose, such Notes mature on the Par Call Date). “Independent Investment
Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time.
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date. As used in the immediately preceding sentence and in the definition of “Treasury
Rate” above, the term “business day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City
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are authorized or obligated by law or executive order to close. “Reference Treasury Dealer” means (1) each of Citibank Global Markets Inc., J.P. Morgan Securities LLC and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), in which case the
Company shall substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the Company.
“Par Call Date” means January 15, 2022.
Special Mandatory Redemption
In the
event the closing of the Proposed Acquisition has not occurred on or prior to the earlier of (i) June 19, 2017 (provided that, if the termination date of the Acquisition Agreement is extended, this date will also be extended to the same
extended termination date, but in no case will this date be extended beyond September 15, 2017) and (ii) the date the Acquisition Agreement is terminated (each, a “Special Mandatory Redemption Event”), the Company shall redeem
the Notes in whole at a special mandatory redemption price (the “Special Mandatory Redemption Price”) equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest on the principal amount of the Notes to,
but not including, the Special Mandatory Redemption Date (as defined below). Upon the occurrence of a Special Mandatory Redemption Event, the Company shall promptly (but in no event later than 10 Business Days following such Special Mandatory
Redemption Event) cause notice to be delivered electronically or mailed, with a copy to the Trustee, to each holder at its registered address (such date of notification to the holders, the “Redemption Notice Date”). The notice will inform
holders that the Notes will be redeemed on the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the Redemption Notice Date (such date, the “Special Mandatory Redemption Date”) and that all of the
outstanding Notes will be redeemed at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the holders of the Notes. At or prior to 12:00 p.m., New York City time, on the
Business Day immediately preceding the Special Mandatory Redemption Date, the Company shall deposit with the Trustee funds sufficient to pay the Special Mandatory Redemption Price for the Notes. If such deposit is made as provided above, the Notes
will cease to bear interest on and after the Special Mandatory Redemption Date. There is no escrow account for, or security interest in, the proceeds of the offering for the benefit of the holders of the Notes.
For purposes of the immediately preceding paragraph, the following terms have the following definitions:
“Acquisition Agreement” means the interest purchase agreement signed September 19, 2016 between the Company and Avnet Inc. to
acquire all the shares of AVT Technology Solutions LLC and TS Divestco B.V., which will hold all assets and liabilities primarily relating to the technology solutions business of Avnet Inc.
“Proposed Acquisition” means the proposed acquisition by the Company of all the shares of AVT Technology Solutions LLC and TS
Divestco B.V., which will hold all assets and liabilities primarily relating to the technology solutions business of Avnet Inc., pursuant to the Acquisition Agreement.
B1-9
Interest Rate Adjustment
The annual interest rate payable on the Notes shall be subject to adjustment from time to time if either Moody’s or S&P (each as
defined in “—Change of Control Offer” below) or, if applicable, any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Company (as certified by
a resolution of the Company’s board of directors) as a replacement for Moody’s or S&P, as the case may be, (each, a “Substitute Rating Agency”), downgrades (or downgrades and subsequently upgrades) the credit rating assigned
to the Notes, in the manner described below. Each of Moody’s, S&P and any Substitute Rating Agency is an “Interest Rate Rating Agency,” and together they are “Interest Rate Rating Agencies.”
If the rating assigned by Moody’s (or, if applicable, any Substitute Rating Agency) of the Notes is decreased to a rating set forth in
the immediately following table, the interest rate on the Notes shall increase such that it shall equal the interest rate payable on the Notes on the date of their initial issuance plus the percentage set forth opposite the rating in the table below
(plus, if applicable, the percentage set forth opposite the rating in the table under “—S&P Rating”):
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Moody’s* Rating:
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Interest Rate Increase:
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Ba1
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0.25%
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Ba2
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0.50%
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Ba3
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0.75%
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B1 or below
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1.00%
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*
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Including the equivalent ratings of any Substitute Rating Agency.
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If the rating assigned by
Moody’s (or, if applicable, any Substitute Rating Agency) of the Notes is decreased to a rating set forth in the immediately following table, the interest rate on the Notes shall increase such that it shall equal the interest rate payable on
the Notes on the date of their initial issuance plus the percentage set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table under “—Moody’s Rating”):
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S&P Rating*:
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Interest Rate Increase:
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BB+
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0.25%
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BB
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0.50%
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BB-
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0.75%
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B+ or below
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1.00%
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*
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Including the equivalent ratings of any Substitute Rating Agency.
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If at any time the interest
rate on the Notes has been increased and any of the Interest Rate Rating Agencies subsequently upgrades its rating of the Notes, the interest rate on the Notes shall be decreased such that the interest rate for the Notes equals the interest rate
payable on the Notes on the date of their initial issuance plus the percentages set forth opposite
B1-10
the ratings from the tables above in effect immediately following the upgrade in rating. If Moody’s (or any Substitute Rating Agency) subsequently upgrades its rating of the Notes to Baa3
(or its equivalent, in the case of a Substitute Rating Agency) or higher, and S&P (or any Substitute Rating Agency) upgrades its rating to
BBB-
(or its equivalent, in the case of a Substitute Rating
Agency) or higher, the interest rate on the Notes shall be decreased to the interest rate payable on the Notes on the date of their initial issuance (and if one such upgrade occurs and the other does not, the interest rate on the Notes shall be
decreased so that it does not reflect any increase attributable to the upgrading Interest Rate Rating Agency). In addition, the interest rates on the Notes shall permanently cease to be subject to any adjustment described above (notwithstanding any
subsequent downgrade in the ratings by any of the Interest Rate Rating Agencies) if the Notes become rated Baa1 and BBB+ (or, in either case, the equivalent thereof, in the case of a Substitute Rating Agency) or higher by Moody’s and S&P
(or, in either case, any Substitute Rating Agency), respectively (or one of these ratings if the Notes are only rated by one rating agency).
Each adjustment required by any downgrade or upgrade in a rating set forth above, whether occasioned by the action of Moody’s or S&P
(or, in either case, any Substitute Rating Agency), shall be made independent of any and all other adjustments. In no event shall (1) the interest rate on the Notes be reduced to below the interest rate payable on the Notes on the date of their
initial issuance or (2) the total increase in the interest rate on the Notes exceed 2.00% above the interest rate payable on the Notes on the date of their initial issuance.
No adjustments in the interest rate of the Notes shall be made solely as a result of an Interest Rate Rating Agency ceasing to provide a
rating on the Notes. If at any time less than two Interest Rate Rating Agencies provide a rating of the Notes for reasons beyond the Company’s control, the Company shall use its commercially reasonable efforts to obtain a rating of the Notes
from a Substitute Rating Agency, if one exists, in which case, for purposes of determining any increase or decrease in the interest rate on the Notes pursuant to the tables above (a) such Substitute Rating Agency shall be substituted for the
last Interest Rate Rating Agency to provide a rating of the Notes but which has since ceased to provide such rating, (b) the relative rating scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt shall be
determined in good faith by an independent investment banking institution of national standing appointed by the Company and, for purposes of determining the applicable ratings included in the applicable table above with respect to such Substitute
Rating Agency, such ratings shall be deemed to be the equivalent ratings used by Moody’s or S&P, as applicable, in such table and (c) the interest rate on the Notes shall increase or decrease, as the case may be, such that the interest
rate equals the interest rate payable on the Notes on the date of their initial issuance plus the appropriate percentage, if any, set forth opposite the deemed equivalent rating from such Substitute Rating Agency in the applicable table above
(taking into account the provisions of clause (b) above) (plus any applicable percentage resulting from a decreased rating by the other Interest Rate Rating Agency).
For so long as only one Interest Rate Rating Agency provides a rating of the Notes, any subsequent increase or decrease in the interest rate
of the Notes necessitated by a reduction or increase in the rating by the Interest Rate Rating Agency providing the rating shall be twice the applicable percentage set forth in the applicable table above. For so long as no
B1-11
Interest Rate Rating Agency provides a rating of the Notes, the interest rate on the Notes shall increase to, or remain at, as the case may be, 2.00% above the interest rate payable on the Notes
on the date of their initial issuance.
Any interest rate increase or decrease described above shall take effect from the first day of the
interest period commencing after the date on which a rating change occurs that requires an adjustment in the interest rate. If any Interest Rate Rating Agency changes its rating of the Notes more than once prior to any particular Interest Payment
Date, the last change by such agency prior to such Interest Payment Date shall control for purposes of any interest rate increase or decrease with respect to the Notes described above relating to such rating agency’s action. If the interest
rate payable on the Notes is increased as described above, the term “interest,” as used with respect to the Notes, shall be deemed to include any such additional interest unless the context otherwise requires.
Change of Control Offer
If a Change of
Control Triggering Event (as defined below) occurs, unless the Company has exercised its right to redeem the Notes as provided under the Optional Redemption described above, the Company shall be required to make an offer to each Holder of Notes to
purchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any,
to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that after giving effect to the purchase, any Notes that
remain outstanding shall have a denomination of $2,000 and integral multiples of $1,000 above that amount.
Within 30 days following the
date upon which the Change of Control Triggering Event has occurred or, at the Company’s option, prior to any Change of Control (as defined below) but after the public announcement of the transaction that constitutes or may constitute the
Change of Control, except to the extent that the Company has exercised its right to redeem the Notes as provided under the Optional Redemption described above, the Company shall mail a notice (a “Change of Control Offer”) to each Holder
with a copy to the Trustee describing the transaction or transactions that constitute or may constitute a Change of Control Triggering Event and offering to purchase Notes on the date specified in the notice, which date shall be no earlier than 30
days nor later than 60 days from the date such notice is delivered (other than as may be required by law) (such date, the “Change of Control Payment Date”). The notice shall, if delivered prior to the date of consummation of the Change of
Control, state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Company shall, to the extent lawful (a) accept for payment all Notes or portions of the Notes
properly tendered pursuant to the Change of Control Offer; (b) 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 pursuant to the Change of Control
Offer; and (c) 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.
B1-12
The Company shall comply, to the extent applicable, with the requirements of Rule
14(e)-1
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws or regulations in connection with the purchase of Notes pursuant to a Change of Control
Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the terms described in the Notes, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have
breached its obligations by virtue thereof.
Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer shall
be required to surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” attached hereto completed, to the Paying Agent at the address specified in the notice, or transfer their Notes to the Paying Agent by
book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third business day prior to the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
If Holders of not less than 95% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a
Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company shall have the right,
upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a
redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment
Date).
For purposes of the Change of Control Offer provisions, the following definitions are applicable:
“Change of Control” means the occurrence of any one of the following: (a) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its Subsidiaries; (b) 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)(3) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules
13d-3
and
13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock, measured by voting power rather than number of shares; (c) the Company
B1-13
consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the
Company’s outstanding Voting Stock or the outstanding Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction; (d) the first day on which the
majority of the members of the Company’s board of directors cease to be Continuing Directors; or (e) the adoption of a plan relating to the Company’s liquidation or dissolution.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Continuing Director” means, as of any date of determination, any member of the Company’s board of directors who (a) was a
member of such board of directors on January 24, 2017 or (b) was nominated for election, elected or appointed to the Company’s board of directors with the approval of a majority of the continuing directors who were members of the
Company’s board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without
objection to such nomination).
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating category of Moody’s); a rating of
BBB-
or better by S&P (or its equivalent under any successor rating category of S&P); and the equivalent investment grade rating from any
replacement Rating Agency or Agencies appointed by the Company.
“Moody’s” means Moody’s Investors Service, Inc., a
subsidiary of Moody’s Corporation, and its successors.
“Rating Agency” means each of Moody’s and S&P; provided
that, if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available, the Company shall appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating
organization” within the meaning of Section 3(a)(62) under the Exchange Act.
“Ratings Event” means ratings of the Notes
are lowered by each of the Rating Agencies and the Notes rated below Investment Grade by each of the Rating Agencies in any case on any day during the period (the “Trigger Period”) commencing on the date 60 days prior to the first public
announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period shall be extended for so long as the rating of the Notes is under publicly
announced consideration for a possible downgrade by either of the Rating Agencies).
“S&P” means Global Ratings, a division
of S&P Global, Inc., and its successors.
B1-14
“Voting Stock” of any specified person as of any date means the Capital Stock of such
person that is at the time entitled to vote generally in the election of the board of directors of such person.
Restrictive Covenants
Restrictions on Liens
.
The Company shall not, and shall not permit any Restricted Subsidiary to, create or incur any Lien on any shares of stock of a Restricted
Subsidiary or Principal Property of the Company or of a Restricted Subsidiary, whether those shares of stock of a Restricted Subsidiary or Principal Property are owned at the date hereof or acquired afterwards, unless the Company secures or causes
the applicable Restricted Subsidiary to secure the debt securities outstanding under the Indenture (together with any other indebtedness or other obligations the terms of which (or the terms of any agreement evidencing or relating to which) require
that such indebtedness be so secured) equally and ratably with (or, at the Company’s option, prior to) all indebtedness secured by the particular Lien, so long as the indebtedness is so secured.
This covenant does not apply in the case of: (a) the creation of any Lien on any shares of stock of a Subsidiary or any Principal
Property acquired after the date hereof (including acquisitions by way of merger or consolidation) by the Company or a Restricted Subsidiary, contemporaneously with that acquisition, or within 180 days thereafter, to secure or provide for the
payment or financing of any part of the purchase price, or the assumption of any Lien upon any shares of stock of a Subsidiary or any Principal Property acquired after the date hereof existing at the time of the acquisition, or the acquisition of
any shares of stock of a Subsidiary or any Principal Property subject to any Lien without the assumption of that Lien, provided that every Lien referred to in this clause (a) will attach only to the shares of stock of a Subsidiary or any
Principal Property so acquired and fixed improvements on that Principal Property; (b) any Lien on any shares of stock of a Subsidiary or any Principal Property existing on the date hereof; (c) any Lien on any shares of stock of a
Subsidiary or any Principal Property in favor of the Company or any Restricted Subsidiary; (d) any Lien on any Principal Property being constructed or improved securing loans to finance the construction or improvements of that property;
(e) any Lien created by a lease of any Principal Property, which under GAAP as in effect as of the date hereof would be characterized as an operating lease, whether entered into before or after the date hereof, including Liens arising under or
in connection with (i) the Synthetic Lease Facility or any refinancing, renewal or restructuring of the Synthetic Lease Facility; and (ii) any remarketing or purchase by the Company of, or any other action taken by the Company with respect
to, any Principal Property subject to the Synthetic Lease or any refinancing, renewal or restructuring thereof to the extent permitted thereby; (f) any Lien on shares of stock of a Subsidiary or any Principal Property incurred in connection
with the issuance of
tax-exempt
governmental obligations, including, without limitation, industrial revenue bonds and similar financings; (g) any mechanics’, materialmen’s, carriers’ or
other similar Liens arising in the ordinary course of business with respect to obligations that are not yet due or that are being contested in good faith; (h) any Lien on any shares of stock of a Subsidiary or any Principal Property for taxes,
assessments or governmental charges or levies not yet delinquent, or already delinquent but the validity of which is being contested in good faith; (i) any Lien on any Principal Property arising
B1-15
in connection with legal proceedings being contested in good faith, including any judgment Lien so long as execution on the Lien is stayed; (j) any landlord’s Lien on fixtures located
on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, and tenants’ rights under leases, easements and similar Liens not materially impairing the use or value of the property involved; and (k) any
renewal or extension of or substitution for any Lien permitted by any of the preceding clauses, provided that, in the case of a Lien permitted under clauses (a), (b) or (d), the indebtedness secured is not increased nor the Lien extended to any
additional assets.
Notwithstanding the restrictions set forth above, the Company or any Restricted Subsidiary may create or assume Liens
in addition to those permitted by the preceding paragraph, and renew, extend or replace those Liens, provided that at the time of and after giving effect to the creation, assumption, renewal, extension or replacement, Exempted Debt does not exceed
15% of Consolidated Net Tangible Assets of the Company.
Restrictions on Sale and Leaseback Transactions involving Principal
Properties
.
The Company shall not, and shall not permit any Restricted Subsidiary to, sell or transfer, directly or indirectly, except
to the Company or to a Restricted Subsidiary, any Principal Property as an entirety, or any substantial portion of the Company’s Principal Property, with the intention of taking back a lease of such Principal Property, except a lease for a
period of three years or less at the end of which it is intended that the use of that Principal Property by the lessee will be discontinued. Notwithstanding the foregoing, the Company or any Restricted Subsidiary may sell any Principal Property and
lease it back for a longer period: (a) if such Principal Property is subject to the Synthetic Lease Facility or any refinancing, renewal or restructuring thereof; (b) if the Company or such applicable Restricted Subsidiary would be
entitled pursuant to the Restrictions on Liens described above to create a Lien on the Principal Property to be leased securing Funded Debt in an amount equal to the Attributable Debt with respect to the sale and
lease-back
transaction without equally and ratably securing the outstanding Notes; or (c) if the Company promptly informs the Trustee of the transaction, and the Company causes an amount equal to the fair
value (as determined by resolution of its Board of Directors) of the Principal Property to be applied (1) to the purchase of other property that will constitute Principal Property having a fair value at least equal to the fair value of the
Principal Property sold, or (2) to the retirement within 120 days after receipt of the proceeds of Funded Debt incurred or assumed by the Company or a Restricted Subsidiary, including the Notes; provided further that, in lieu of applying all of
or any part of such net proceeds to such retirement, the Company may, within 75 days after the sale, deliver or cause to be delivered to the applicable trustee for cancellation debt securities evidencing Funded Debt of the Company (which may include
the Notes) or of a Restricted Subsidiary previously authenticated and delivered by the applicable trustee, and not yet tendered for sinking fund purposes or called for a sinking fund or otherwise applied as a credit against an obligation to redeem
or retire such debt securities, and an Officer’s Certificate (which will be delivered to the applicable trustee) stating that the Company elects to deliver or cause to be delivered the debt securities in lieu of retiring Funded Debt as provided
in this provision.
B1-16
If the Company delivers debt securities to the applicable trustee and the Company duly delivers
the Officer’s Certificate pursuant the preceding paragraph, the amount of cash that the Company shall be required to apply to the retirement of Funded Debt under this provision shall be reduced by an amount equal to the aggregate of the then
applicable optional redemption prices (not including any optional sinking fund redemption prices) of the applicable debt securities so delivered or, if there are no such redemption prices, the principal amount of those debt securities. If the
applicable debt securities provide for an amount less than the principal amount to be due and payable upon a declaration of the maturity, then the amount of cash shall be reduced by the amount of principal of those debt securities that would be due
and payable as of the date of the application upon a declaration of acceleration of the maturity pursuant to the terms of the Indenture pursuant to which those debt securities were issued.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may enter into sale and lease-back transactions involving any
Principal Property in addition to those permitted under the Restrictions on Liens described above, without any obligation to retire any outstanding Notes or other Funded Debt; provided that at the time of entering into and giving effect to such sale
and lease-back transactions, Exempted Debt does not exceed 15% of Consolidated Net Tangible Assets of the Company.
For the purposes of
the foregoing restrictive covenants, the following definitions are applicable:
“Attributable Debt” means, as to any particular
lease, the greater of (a) the fair market value of the property subject to the lease or (b) the total net amount of rent required to be paid during the remaining term of the lease, discounted by the weighted average effective interest cost
per annum of the outstanding debt securities of all series, compounded semi-annually.
“Consolidated Net Tangible Assets” means
total assets after deducting all current liabilities and intangible assets as set forth in the Company’s most recent consolidated balance sheet and computed in accordance with GAAP.
“Exempted Debt” means the sum, without duplication, of the following items outstanding as of the date Exempted Debt is being
determined (a) indebtedness of the Company and its Restricted Subsidiaries incurred after the date hereof and secured by Liens created or assumed or permitted to exist pursuant to the Restrictions on Liens described above; and(b) Attributable
Debt of the Company and its Restricted Subsidiaries in respect of all sale and lease-back transactions with regard to any Principal Property entered into pursuant to the last paragraph of the Restrictions on Sale and Leaseback Transactions Involving
Principal Properties described above.
“Funded Debt” means all indebtedness for money borrowed, including purchase money
indebtedness, having a maturity of more than one year from the date of its creation or having a maturity of less than one year but by its terms being renewable or extendible at the option of the obligor, beyond one year from the date of its
creation.
B1-17
“GAAP” means generally accepted accounting principles in the United States at the date
of any computation.
“Holder” or “Securityholder” mean the registered holder of any debt security with respect to
registered securities and the bearer of any unregistered security or any coupon appertaining to it, as the case may be.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest in respect of such asset.
For the purposes of this Indenture, the Company or any Subsidiary shall be deemed to own, subject to a Lien, any asset that the Company has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
“Principal Property” means the Company’s corporate
headquarters and any warehouse or distribution center, together with any land, land improvements, buildings and fixtures related thereto, owned or leased at the date hereof or acquired after that date by the Company or any of its Restricted
Subsidiaries and which is located within the United States, other than: (a) any property which in the opinion of the Company’s Board of Directors is not of material importance to the total business conducted by the Company as an entirety
or (b) any portion of a particular property which is similarly found not to be of material importance to the use or operation of such property.
“Restricted Subsidiary” means a Subsidiary of the Company (a) of which substantially all the property is located, or
substantially all the business is carried on, within the United States; and (b) which owns a Principal Property.
“Synthetic
Lease Facility” means the Fourth Amended and Restated Lease Agreement, dated as of June 27, 2013, between the Company, as lessee, and SunTrust Bank, as lessor, and each Operative Agreement (as defined therein).
B1-18
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND
ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer such Note on the books of the Issuer,
with full power of substitution in the premises.
Signature:
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Dated:
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
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B1-19
SIGNATURE GUARANTEE
[Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the 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 Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.]
B1-20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to a Change of Control Offer, check the box below:
☐
If you want to elect to have only part of the Note purchased by the Company pursuant to a Change of Control Offer, state the amount you elect
to have purchased: $________
Date:____________________
Your Signature:
____________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: ____________________________________
Signature
Guarantee: ____________________________________
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the 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 Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
B1-21
SCHEDULE OF INCREASES OR DECREASES IN NOTE
The initial principal amount of this Note is $500,000,000. The following increases or decreases in a part of this Note have been made:
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Date
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Amount of
decrease in
principal
amount of this
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Amount of
increase in
principal
amount of this
Note
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Principal
amount of this
Note following
such decrease
(or increase)
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Trustee
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B1-22
Annex
B-2
GLOBAL SECURITY
UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
TECH DATA CORPORATION
4.950%
Senior Note due 2027
PRINCIPAL AMOUNT: $500,000,000
CUSIP:
878237 AH9
No.:
R-001
TECH DATA CORPORATION, a Florida corporation (the “Company”, which term includes any successor thereto under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or registered assigns, at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the
Trustee, the principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) (or such other principal amount as shall be set forth in the Schedule of Increases or Decreases in Note attached hereto) on February 15, 2027, in the coin or currency of
the United States, and to pay interest thereon from January 31, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on February 15 and August 15 of each
year, beginning on August 15, 2017, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.950% per annum, on the basis of a
360-day
year consisting of twelve
30-day
months, until the principal hereof is paid or duly provided for or made available for payment and (to the extent that the payment of such interest shall be legally enforceable) at such rate on any overdue
principal and premium and on any overdue installment of interest;
provided
that payment of interest may be made at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the
Register or by wire transfer as provided in the Indenture.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the 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 Record Date for such interest, which shall be
February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
B2-1
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Record Date and may either be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as, more fully provided in said Indenture.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This
Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee under the Indenture referred to on the reverse hereof.
B2-2
IN WITNESS WHEREOF, TECH DATA CORPORATION has caused this Note to be duly executed.
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TECH DATA CORPORATION
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By:
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Name: Charles V. Dannewitz
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Title: Executive Vice President, Chief Financial Officer
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B2-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date of authentication: January 31, 2017
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MUFG UNION BANK N.A.
as
Trustee
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By:
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Authorized Signatory
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B2-4
REVERSE OF NOTE
TECH DATA CORPORATION
4.950%
Senior Note due 2027
General
This
Note is one of a duly authorized issue of securities of the Company (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of January 17, 2017
(the “Indenture”), duly executed and delivered by the Company to MUFG Union Bank, N.A., as Trustee (the “Trustee,” which term includes any successor trustee), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the 4.950 % Senior Notes due 2027 of the Company (the “Notes”), limited in aggregate principal amount
to $500,000,000;
provided
,
however
, that the Company, without notice to or consent of the Holders, may issue additional Securities of this series and thereby increase such principal amount in the future, on the same terms and
conditions (except for issue date, public offering price and, if applicable, the date from which interest accrues and the first Interest Payment Date). Any additional Securities shall be issued under a separate CUSIP number unless: (i) the
additional notes and the outstanding notes of the original series are treated as part of the same “issue” of debt instruments for U.S. Federal income tax purposes, (ii) such additional notes have no more than a de minimis amount of
original issue discount for U.S. federal income tax purposes or (iii) such issuance would constitute a “qualified reopening” for U.S. federal income tax purposes.
Interest shall be computed on the basis of a
360-day
year consisting of twelve
30-day
months. The Company shall pay interest on overdue principal, premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this Note. If a payment date is not
a Business Day as defined in the Indenture at a Place of Payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions that provide that the Company and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of amending any provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of such series to be affected with the written consent of the Holders of a majority in
B2-5
principal amount of the Outstanding Securities of such series affected by such amendment voting separately;
provided
that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment may not: (i) extend the Stated Maturity of the principal of, or any installment of interest on, such Holder’s Security, or reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or materially adversely affect the economic terms of the Holder’s right to convert or exchange any Security as may be provided in the Indenture; (ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of the Indenture or certain Defaults hereunder and their consequences
provided for in the Indenture; (iii) modify any of the provisions of the Indenture governing amendments or waivers with the consent of Holders except to increase any such percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or (iv) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee.
It is also provided in the Indenture that, subject to certain conditions and exceptions, the Holders of a majority in aggregate principal
amount of a series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past Default or Event of Default hereunder and its consequences except a Default in the payment of interest or
any premium on or the principal of the Securities of such series or a Default in respect of a covenant or provision of the Indenture that cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series.
Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights under the Indenture, respectively; provided that no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note in the manner, at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Notes will be issued in fully registered form without coupons in minimum denominations of $2,000 and
multiples of $1,000 in excess thereof and are transferable and exchangeable at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Company maintained for such purpose, which shall initially be the Corporate Trust
B2-6
Office of the Trustee, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company,
the Trustee and any agent of the Company or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions hereof, interest hereon, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the
Indenture or any indenture supplemental thereto or in any Note, or because of any indebtedness evidenced thereby, shall be had against any incorporator as such, or against any past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any penalty or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein that are
defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without
regard to conflicts of laws principles thereof) shall govern this Note.
Optional Redemption
At any time prior to the Par Call Date (as defined below), the Company shall have the right at its option to redeem the Notes, in whole or from
time to time in part, at a Redemption Price equal to the greater of:
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(iii)
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100% of the principal amount of the Notes to be redeemed; or
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(iv)
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the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the Par Call
Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day
year consisting of twelve
30-day
months) at a rate equal to the sum of the applicable
Treasury Rate plus 40 basis points, together with, accrued and unpaid interest on the principal amount of the Notes to be redeemed to, but not including, the Redemption Date.
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At any time on or after the Par Call Date, the Company shall have the right at its option to redeem the Notes, at any time in whole or from
time to time in part, at a
B2-7
Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus, accrued and unpaid interest, if any, on the principal amount of the Notes to be redeemed to, but
excluding, the Redemption Date.
For the purposes of determining the Redemption Price, “Treasury Rate” means, with respect to
any Redemption Date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or
any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the
two published maturities most closely corresponding to the applicable Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest
month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable
Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate shall be
calculated on the third business day preceding the redemption date.
“Comparable Treasury Issue” means the United States
Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming, for this purpose, such Notes mature on the Par Call Date). “Independent Investment
Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time.
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date. As used in the immediately preceding sentence and in the definition of “Treasury
Rate” above, the term “business day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City
B2-8
are authorized or obligated by law or executive order to close. “Reference Treasury Dealer” means (1) each of Citibank Global Markets Inc., J.P. Morgan Securities LLC and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), in which case the
Company shall substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the Company.
“Par Call Date” means November 15, 2026.
Special Mandatory Redemption
In the
event the closing of the Proposed Acquisition has not occurred on or prior to the earlier of (i) June 19, 2017 (provided that, if the termination date of the Acquisition Agreement is extended, this date will also be extended to the same
extended termination date, but in no case will this date be extended beyond September 15, 2017) and (ii) the date the Acquisition Agreement is terminated (each, a “Special Mandatory Redemption Event”), the Company shall redeem
the Notes in whole at a special mandatory redemption price (the “Special Mandatory Redemption Price”) equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest on the principal amount of the Notes to,
but not including, the Special Mandatory Redemption Date (as defined below). Upon the occurrence of a Special Mandatory Redemption Event, the Company shall promptly (but in no event later than 10 Business Days following such Special Mandatory
Redemption Event) cause notice to be delivered electronically or mailed, with a copy to the Trustee, to each holder at its registered address (such date of notification to the holders, the “Redemption Notice Date”). The notice will inform
holders that the Notes will be redeemed on the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the Redemption Notice Date (such date, the “Special Mandatory Redemption Date”) and that all of the
outstanding Notes will be redeemed at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the holders of the Notes. At or prior to 12:00 p.m., New York City time, on the
Business Day immediately preceding the Special Mandatory Redemption Date, the Company shall deposit with the Trustee funds sufficient to pay the Special Mandatory Redemption Price for the Notes. If such deposit is made as provided above, the Notes
will cease to bear interest on and after the Special Mandatory Redemption Date. There is no escrow account for, or security interest in, the proceeds of the offering for the benefit of the holders of the Notes.
For purposes of the immediately preceding paragraph, the following terms have the following definitions:
“Acquisition Agreement” means the interest purchase agreement signed September 19, 2016 between the Company and Avnet Inc. to
acquire all the shares of AVT Technology Solutions LLC and TS Divestco B.V., which will hold all assets and liabilities primarily relating to the technology solutions business of Avnet Inc.
“Proposed Acquisition” means the proposed acquisition by the Company of all the shares of AVT Technology Solutions LLC and TS
Divestco B.V., which will hold all assets and liabilities primarily relating to the technology solutions business of Avnet Inc., pursuant to the Acquisition Agreement.
B2-9
Interest Rate Adjustment
The annual interest rate payable on the Notes shall be subject to adjustment from time to time if either Moody’s or S&P (each as
defined in “—Change of Control Offer” below) or, if applicable, any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Company (as certified by
a resolution of the Company’s board of directors) as a replacement for Moody’s or S&P, as the case may be, (each, a “Substitute Rating Agency”), downgrades (or downgrades and subsequently upgrades) the credit rating assigned
to the Notes, in the manner described below. Each of Moody’s, S&P and any Substitute Rating Agency is an “Interest Rate Rating Agency,” and together they are “Interest Rate Rating Agencies.”
If the rating assigned by Moody’s (or, if applicable, any Substitute Rating Agency) of the Notes is decreased to a rating set forth in
the immediately following table, the interest rate on the Notes shall increase such that it shall equal the interest rate payable on the Notes on the date of their initial issuance plus the percentage set forth opposite the rating in the table below
(plus, if applicable, the percentage set forth opposite the rating in the table under “—S&P Rating”):
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Moody’s* Rating:
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Interest Rate Increase:
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Ba1
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0.25%
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Ba2
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0.50%
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Ba3
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0.75%
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B1 or below
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1.00%
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*
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Including the equivalent ratings of any Substitute Rating Agency.
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If the rating assigned by
Moody’s (or, if applicable, any Substitute Rating Agency) of the Notes is decreased to a rating set forth in the immediately following table, the interest rate on the Notes shall increase such that it shall equal the interest rate payable on
the Notes on the date of their initial issuance plus the percentage set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table under “—Moody’s Rating”):
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S&P Rating*:
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Interest Rate Increase:
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BB+
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0.25%
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BB
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0.50%
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BB-
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0.75%
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B+ or below
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1.00%
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*
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Including the equivalent ratings of any Substitute Rating Agency.
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If at any time the interest
rate on the Notes has been increased and any of the Interest Rate Rating Agencies subsequently upgrades its rating of the Notes, the interest rate on the Notes shall be decreased such that the interest rate for the Notes equals the interest rate
payable on the Notes on the date of their initial issuance plus the percentages set forth opposite
B2-10
the ratings from the tables above in effect immediately following the upgrade in rating. If Moody’s (or any Substitute Rating Agency) subsequently upgrades its rating of the Notes to Baa3
(or its equivalent, in the case of a Substitute Rating Agency) or higher, and S&P (or any Substitute Rating Agency) upgrades its rating to
BBB-
(or its equivalent, in the case of a Substitute Rating
Agency) or higher, the interest rate on the Notes shall be decreased to the interest rate payable on the Notes on the date of their initial issuance (and if one such upgrade occurs and the other does not, the interest rate on the Notes shall be
decreased so that it does not reflect any increase attributable to the upgrading Interest Rate Rating Agency). In addition, the interest rates on the Notes shall permanently cease to be subject to any adjustment described above (notwithstanding any
subsequent downgrade in the ratings by any of the Interest Rate Rating Agencies) if the Notes become rated Baa1 and BBB+ (or, in either case, the equivalent thereof, in the case of a Substitute Rating Agency) or higher by Moody’s and S&P
(or, in either case, any Substitute Rating Agency), respectively (or one of these ratings if the Notes are only rated by one rating agency).
Each adjustment required by any downgrade or upgrade in a rating set forth above, whether occasioned by the action of Moody’s or S&P
(or, in either case, any Substitute Rating Agency), shall be made independent of any and all other adjustments. In no event shall (1) the interest rate on the Notes be reduced to below the interest rate payable on the Notes on the date of their
initial issuance or (2) the total increase in the interest rate on the Notes exceed 2.00% above the interest rate payable on the Notes on the date of their initial issuance.
No adjustments in the interest rate of the Notes shall be made solely as a result of an Interest Rate Rating Agency ceasing to provide a
rating on the Notes. If at any time less than two Interest Rate Rating Agencies provide a rating of the Notes for reasons beyond the Company’s control, the Company shall use its commercially reasonable efforts to obtain a rating of the Notes
from a Substitute Rating Agency, if one exists, in which case, for purposes of determining any increase or decrease in the interest rate on the Notes pursuant to the tables above (a) such Substitute Rating Agency shall be substituted for the
last Interest Rate Rating Agency to provide a rating of the Notes but which has since ceased to provide such rating, (b) the relative rating scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt shall be
determined in good faith by an independent investment banking institution of national standing appointed by the Company and, for purposes of determining the applicable ratings included in the applicable table above with respect to such Substitute
Rating Agency, such ratings shall be deemed to be the equivalent ratings used by Moody’s or S&P, as applicable, in such table and (c) the interest rate on the Notes shall increase or decrease, as the case may be, such that the interest
rate equals the interest rate payable on the Notes on the date of their initial issuance plus the appropriate percentage, if any, set forth opposite the deemed equivalent rating from such Substitute Rating Agency in the applicable table above
(taking into account the provisions of clause (b) above) (plus any applicable percentage resulting from a decreased rating by the other Interest Rate Rating Agency).
For so long as only one Interest Rate Rating Agency provides a rating of the Notes, any subsequent increase or decrease in the interest rate
of the Notes necessitated by a reduction or increase in the rating by the Interest Rate Rating Agency providing the rating shall be twice the applicable percentage set forth in the applicable table above. For so long as no
B2-11
Interest Rate Rating Agency provides a rating of the Notes, the interest rate on the Notes shall increase to, or remain at, as the case may be, 2.00% above the interest rate payable on the Notes
on the date of their initial issuance.
Any interest rate increase or decrease described above shall take effect from the first day of the
interest period commencing after the date on which a rating change occurs that requires an adjustment in the interest rate. If any Interest Rate Rating Agency changes its rating of the Notes more than once prior to any particular Interest Payment
Date, the last change by such agency prior to such Interest Payment Date shall control for purposes of any interest rate increase or decrease with respect to the Notes described above relating to such rating agency’s action. If the interest
rate payable on the Notes is increased as described above, the term “interest,” as used with respect to the Notes, shall be deemed to include any such additional interest unless the context otherwise requires.
Change of Control Offer
If a Change of
Control Triggering Event (as defined below) occurs, unless the Company has exercised its right to redeem the Notes as provided under the Optional Redemption described above, the Company shall be required to make an offer to each Holder of Notes to
purchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any,
to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that after giving effect to the purchase, any Notes that
remain outstanding shall have a denomination of $2,000 and integral multiples of $1,000 above that amount.
Within 30 days following the
date upon which the Change of Control Triggering Event has occurred or, at the Company’s option, prior to any Change of Control (as defined below) but after the public announcement of the transaction that constitutes or may constitute the
Change of Control, except to the extent that the Company has exercised its right to redeem the Notes as provided under the Optional Redemption described above, the Company shall mail a notice (a “Change of Control Offer”) to each Holder
with a copy to the Trustee describing the transaction or transactions that constitute or may constitute a Change of Control Triggering Event and offering to purchase Notes on the date specified in the notice, which date shall be no earlier than 30
days nor later than 60 days from the date such notice is delivered (other than as may be required by law) (such date, the “Change of Control Payment Date”). The notice shall, if delivered prior to the date of consummation of the Change of
Control, state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Company shall, to the extent lawful (a) accept for payment all Notes or portions of the Notes
properly tendered pursuant to the Change of Control Offer; (b) 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 pursuant to the Change of Control
Offer; and (c) 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.
B2-12
The Company shall comply, to the extent applicable, with the requirements of Rule
14(e)-1
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws or regulations in connection with the purchase of Notes pursuant to a Change of Control
Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the terms described in the Notes, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have
breached its obligations by virtue thereof.
Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer shall
be required to surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” attached hereto completed, to the Paying Agent at the address specified in the notice, or transfer their Notes to the Paying Agent by
book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third business day prior to the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
If Holders of not less than 95% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a
Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company shall have the right,
upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a
redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment
Date).
For purposes of the Change of Control Offer provisions, the following definitions are applicable:
“Change of Control” means the occurrence of any one of the following: (a) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its Subsidiaries; (b) 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)(3) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules
13d-3
and
13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock, measured by voting power rather than number of shares; (c) the Company
B2-13
consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the
Company’s outstanding Voting Stock or the outstanding Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction; (d) the first day on which the
majority of the members of the Company’s board of directors cease to be Continuing Directors; or (e) the adoption of a plan relating to the Company’s liquidation or dissolution.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Continuing Director” means, as of any date of determination, any member of the Company’s board of directors who (a) was a
member of such board of directors on January 24, 2017 or (b) was nominated for election, elected or appointed to the Company’s board of directors with the approval of a majority of the continuing directors who were members of the
Company’s board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without
objection to such nomination).
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating category of Moody’s); a rating of
BBB-
or better by S&P (or its equivalent under any successor rating category of S&P); and the equivalent investment grade rating from any
replacement Rating Agency or Agencies appointed by the Company.
“Moody’s” means Moody’s Investors Service, Inc., a
subsidiary of Moody’s Corporation, and its successors.
“Rating Agency” means each of Moody’s and S&P; provided
that, if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available, the Company shall appoint a replacement for such Rating Agency that is a “nationally recognized statistical rating
organization” within the meaning of Section 3(a)(62) under the Exchange Act.
“Ratings Event” means ratings of the Notes
are lowered by each of the Rating Agencies and the Notes rated below Investment Grade by each of the Rating Agencies in any case on any day during the period (the “Trigger Period”) commencing on the date 60 days prior to the first public
announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which Trigger Period shall be extended for so long as the rating of the Notes is under publicly
announced consideration for a possible downgrade by either of the Rating Agencies).
“S&P” means Global Ratings, a division
of S&P Global, Inc., and its successors.
B2-14
“Voting Stock” of any specified person as of any date means the Capital Stock of such
person that is at the time entitled to vote generally in the election of the board of directors of such person.
Restrictive Covenants
Restrictions on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to, create or incur any Lien on any shares of stock of a Restricted
Subsidiary or Principal Property of the Company or of a Restricted Subsidiary, whether those shares of stock of a Restricted Subsidiary or Principal Property are owned at the date hereof or acquired afterwards, unless the Company secures or causes
the applicable Restricted Subsidiary to secure the debt securities outstanding under the Indenture (together with any other indebtedness or other obligations the terms of which (or the terms of any agreement evidencing or relating to which) require
that such indebtedness be so secured) equally and ratably with (or, at the Company’s option, prior to) all indebtedness secured by the particular Lien, so long as the indebtedness is so secured.
This covenant does not apply in the case of: (a) the creation of any Lien on any shares of stock of a Subsidiary or any Principal
Property acquired after the date hereof (including acquisitions by way of merger or consolidation) by the Company or a Restricted Subsidiary, contemporaneously with that acquisition, or within 180 days thereafter, to secure or provide for the
payment or financing of any part of the purchase price, or the assumption of any Lien upon any shares of stock of a Subsidiary or any Principal Property acquired after the date hereof existing at the time of the acquisition, or the acquisition of
any shares of stock of a Subsidiary or any Principal Property subject to any Lien without the assumption of that Lien, provided that every Lien referred to in this clause (a) will attach only to the shares of stock of a Subsidiary or any
Principal Property so acquired and fixed improvements on that Principal Property; (b) any Lien on any shares of stock of a Subsidiary or any Principal Property existing on the date hereof; (c) any Lien on any shares of stock of a
Subsidiary or any Principal Property in favor of the Company or any Restricted Subsidiary; (d) any Lien on any Principal Property being constructed or improved securing loans to finance the construction or improvements of that property;
(e) any Lien created by a lease of any Principal Property, which under GAAP as in effect as of the date hereof would be characterized as an operating lease, whether entered into before or after the date hereof, including Liens arising under or
in connection with (i) the Synthetic Lease Facility or any refinancing, renewal or restructuring of the Synthetic Lease Facility; and (ii) any remarketing or purchase by the Company of, or any other action taken by the Company with respect
to, any Principal Property subject to the Synthetic Lease or any refinancing, renewal or restructuring thereof to the extent permitted thereby; (f) any Lien on shares of stock of a Subsidiary or any Principal Property incurred in connection
with the issuance of
tax-exempt
governmental obligations, including, without limitation, industrial revenue bonds and similar financings; (g) any mechanics’, materialmen’s, carriers’ or
other similar Liens arising in the ordinary course of business with respect to obligations that are not yet due or that are being contested in good faith; (h) any Lien on any shares of stock of a Subsidiary or any Principal Property for taxes,
assessments or governmental charges or levies not yet delinquent, or already delinquent but the validity of which is being contested in good faith; (i) any Lien on any Principal Property arising
B2-15
in connection with legal proceedings being contested in good faith, including any judgment Lien so long as execution on the Lien is stayed; (j) any landlord’s Lien on fixtures located
on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, and tenants’ rights under leases, easements and similar Liens not materially impairing the use or value of the property involved; and (k) any
renewal or extension of or substitution for any Lien permitted by any of the preceding clauses, provided that, in the case of a Lien permitted under clauses (a), (b) or (d), the indebtedness secured is not increased nor the Lien extended to any
additional assets.
Notwithstanding the restrictions set forth above, the Company or any Restricted Subsidiary may create or assume Liens
in addition to those permitted by the preceding paragraph, and renew, extend or replace those Liens, provided that at the time of and after giving effect to the creation, assumption, renewal, extension or replacement, Exempted Debt does not exceed
15% of Consolidated Net Tangible Assets of the Company.
Restrictions on Sale and
Leaseback Transactions involving Principal Properties.
The Company shall not, and shall not permit any Restricted Subsidiary to, sell
or transfer, directly or indirectly, except to the Company or to a Restricted Subsidiary, any Principal Property as an entirety, or any substantial portion of the Company’s Principal Property, with the intention of taking back a lease of such
Principal Property, except a lease for a period of three years or less at the end of which it is intended that the use of that Principal Property by the lessee will be discontinued. Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may sell any Principal Property and lease it back for a longer period: (a) if such Principal Property is subject to the Synthetic Lease Facility or any refinancing, renewal or restructuring thereof; (b) if the Company or such
applicable Restricted Subsidiary would be entitled pursuant to the Restrictions on Liens described above to create a Lien on the Principal Property to be leased securing Funded Debt in an amount equal to the Attributable Debt with respect to the
sale and lease-back transaction without equally and ratably securing the outstanding Notes; or (c) if the Company promptly informs the Trustee of the transaction, and the Company causes an amount equal to the fair value (as determined by
resolution of its Board of Directors) of the Principal Property to be applied (1) to the purchase of other property that will constitute Principal Property having a fair value at least equal to the fair value of the Principal Property sold, or
(2) to the retirement within 120 days after receipt of the proceeds of Funded Debt incurred or assumed by the Company or a Restricted Subsidiary, including the Notes; provided further that, in lieu of applying all of or any part of such net
proceeds to such retirement, the Company may, within 75 days after the sale, deliver or cause to be delivered to the applicable trustee for cancellation debt securities evidencing Funded Debt of the Company (which may include the Notes) or of a
Restricted Subsidiary previously authenticated and delivered by the applicable trustee, and not yet tendered for sinking fund purposes or called for a sinking fund or otherwise applied as a credit against an obligation to redeem or retire such debt
securities, and an Officer’s Certificate (which will be delivered to the applicable trustee) stating that the Company elects to deliver or cause to be delivered the debt securities in lieu of retiring Funded Debt as provided in this provision.
B2-16
If the Company delivers debt securities to the applicable trustee and the Company duly delivers
the Officer’s Certificate pursuant the preceding paragraph, the amount of cash that the Company shall be required to apply to the retirement of Funded Debt under this provision shall be reduced by an amount equal to the aggregate of the then
applicable optional redemption prices (not including any optional sinking fund redemption prices) of the applicable debt securities so delivered or, if there are no such redemption prices, the principal amount of those debt securities. If the
applicable debt securities provide for an amount less than the principal amount to be due and payable upon a declaration of the maturity, then the amount of cash shall be reduced by the amount of principal of those debt securities that would be due
and payable as of the date of the application upon a declaration of acceleration of the maturity pursuant to the terms of the Indenture pursuant to which those debt securities were issued.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may enter into sale and lease-back transactions involving any
Principal Property in addition to those permitted under the Restrictions on Liens described above, without any obligation to retire any outstanding Notes or other Funded Debt; provided that at the time of entering into and giving effect to such sale
and lease-back transactions, Exempted Debt does not exceed 15% of Consolidated Net Tangible Assets of the Company.
For the purposes of
the foregoing restrictive covenants, the following definitions are applicable:
“Attributable Debt” means, as to any particular
lease, the greater of (a) the fair market value of the property subject to the lease or (b) the total net amount of rent required to be paid during the remaining term of the lease, discounted by the weighted average effective interest cost
per annum of the outstanding debt securities of all series, compounded semi-annually.
“Consolidated Net Tangible Assets” means
total assets after deducting all current liabilities and intangible assets as set forth in the Company’s most recent consolidated balance sheet and computed in accordance with GAAP.
“Exempted Debt” means the sum, without duplication, of the following items outstanding as of the date Exempted Debt is being
determined (a) indebtedness of the Company and its Restricted Subsidiaries incurred after the date hereof and secured by Liens created or assumed or permitted to exist pursuant to the Restrictions on Liens described above; and(b) Attributable
Debt of the Company and its Restricted Subsidiaries in respect of all sale and lease-back transactions with regard to any Principal Property entered into pursuant to the last paragraph of the Restrictions on Sale and Leaseback Transactions Involving
Principal Properties described above.
“Funded Debt” means all indebtedness for money borrowed, including purchase money
indebtedness, having a maturity of more than one year from the date of its creation or having a maturity of less than one year but by its terms being renewable or extendible at the option of the obligor, beyond one year from the date of its
creation.
B2-17
“GAAP” means generally accepted accounting principles in the United States at the date
of any computation.
“Holder” or “Securityholder” mean the registered holder of any debt security with respect to
registered securities and the bearer of any unregistered security or any coupon appertaining to it, as the case may be.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest in respect of such asset.
For the purposes of this Indenture, the Company or any Subsidiary shall be deemed to own, subject to a Lien, any asset that the Company has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
“Principal Property” means the Company’s corporate
headquarters and any warehouse or distribution center, together with any land, land improvements, buildings and fixtures related thereto, owned or leased at the date hereof or acquired after that date by the Company or any of its Restricted
Subsidiaries and which is located within the United States, other than: (a) any property which in the opinion of the Company’s Board of Directors is not of material importance to the total business conducted by the Company as an entirety
or (b) any portion of a particular property which is similarly found not to be of material importance to the use or operation of such property.
“Restricted Subsidiary” means a Subsidiary of the Company (a) of which substantially all the property is located, or
substantially all the business is carried on, within the United States; and (b) which owns a Principal Property.
“Synthetic
Lease Facility” means the Fourth Amended and Restated Lease Agreement, dated as of June 27, 2013, between the Company, as lessee, and SunTrust Bank, as lessor, and each Operative Agreement (as defined therein).
B2-18
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer such Note on the books of the Issuer,
with full power of substitution in the premises.
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Signature:
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Dated:
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
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B2-19
SIGNATURE GUARANTEE
[Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the 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 Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.]
B2-20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to a Change of Control Offer, check the box below:
☐
If you want to elect to have only part of the Note purchased by the Company pursuant to a Change of Control Offer, state the amount you elect
to have purchased: $________
Date:____________________
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Tax Identification No.:
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Signature Guarantee:
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the
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 Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
B2-21
SCHEDULE OF INCREASES OR DECREASES IN NOTE
The initial principal amount of this Note is $500,000,000. The following increases or decreases in a part of this Note have been made:
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Date
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Amount of
decrease in
principal
amount of this
Note
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Amount of
increase in
principal
amount of this
Note
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Principal
amount of this
Note following
such decrease
(or increase)
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Signature of
authorized
signatory of
Trustee
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B2-22
Exhibit
4-D
INDENTURE
Dated as of
January 17, 2017
Between
TECH DATA
CORPORATION,
as Company
and
MUFG UNION BANK,
N.A.,
as Trustee
DEBT
SECURITIES
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS
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Section 1.01
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Definitions
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1
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Section 1.02
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Rules of Construction
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8
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ARTICLE II
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FORMS OF SECURITIES
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Section 2.01
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Form Generally
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8
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Section 2.02
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Form of Trustee’s Certificate of Authentication
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9
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Section 2.03
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Form of Trustee’s Certificate of Authentication by an Authenticating Agent
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9
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ARTICLE III
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THE DEBT SECURITIES
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Section 3.01
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Amount Unlimited; Issuable in Series
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10
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Section 3.02
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Denominations
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12
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Section 3.03
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Execution, Authentication, Delivery and Dating
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13
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Section 3.04
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Temporary Securities
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15
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Section 3.05
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Registrar
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16
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Section 3.06
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Transfer and Exchange
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16
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Section 3.07
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Mutilated, Destroyed, Lost and Stolen Securities
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20
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Section 3.08
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Payment of Interest; Interest Rights Preserved
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21
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Section 3.09
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Cancellation
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22
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Section 3.10
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Computation of Interest
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22
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Section 3.11
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Currency of Payments in Respect of Securities
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22
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Section 3.12
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CUSIP Numbers
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23
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ARTICLE IV
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REDEMPTION OF SECURITIES
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Section 4.01
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Applicability of Right of Redemption
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24
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Section 4.02
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Selection of Securities to be Redeemed
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24
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Section 4.03
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Notice of Redemption
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24
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Section 4.04
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Deposit of Redemption Price
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25
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Section 4.05
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Securities Payable on Redemption Date
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25
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Section 4.06
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Securities Redeemed in Part
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26
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i
TABLE OF CONTENTS
(continued)
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Page
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ARTICLE V
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SINKING FUNDS
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Section 5.01
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Applicability of Sinking Fund
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26
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Section 5.02
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Mandatory Sinking Fund Obligation
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26
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Section 5.03
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Optional Redemption at Sinking Fund Redemption Price
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27
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Section 5.04
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Application of Sinking Fund Payment
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27
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ARTICLE VI
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PARTICULAR COVENANTS OF THE COMPANY
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Section 6.01
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Payments of Principal, Premium and Interest
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28
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Section 6.02
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Maintenance of Office or Agency; Paying Agent
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28
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Section 6.03
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To Hold Payment in Trust
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29
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Section 6.04
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Merger, Consolidation and Sale of Assets
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30
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Section 6.05
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Compliance Certificate
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31
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Section 6.06
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Conditional Waiver by Holders of Securities
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31
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Section 6.07
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Statement by Officers as to Default
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32
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ARTICLE VII
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REMEDIES OF TRUSTEE AND SECURITYHOLDERS
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Section 7.01
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Events of Default
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32
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Section 7.02
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Acceleration; Rescission and Annulment
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33
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Section 7.03
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Other Remedies
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34
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Section 7.04
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Trustee as
Attorney-in-Fact
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35
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Section 7.05
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Priorities
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36
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Section 7.06
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Control by Securityholders; Waiver of Past Defaults
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36
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Section 7.07
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Limitation on Suits
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37
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Section 7.08
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Undertaking for Costs
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37
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Section 7.09
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Remedies Cumulative; Delay or Omission Not Waiver
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38
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ARTICLE VIII
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CONCERNING THE SECURITYHOLDERS
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Section 8.01
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Evidence of Action of Securityholders
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38
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Section 8.02
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Proof of Execution or Holding of Securities
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39
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Section 8.03
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Persons Deemed Owners
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39
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ii
TABLE OF CONTENTS
(continued)
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Page
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Section 8.04
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Effect of Consents
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40
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ARTICLE IX
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SECURITYHOLDERS’ MEETINGS
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Section 9.01
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Purposes of Meetings
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40
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Section 9.02
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Call of Meetings by Trustee
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40
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Section 9.03
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Call of Meetings by Company or Securityholders
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40
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Section 9.04
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Qualifications for Voting
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41
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Section 9.05
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Regulation of Meetings
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41
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Section 9.06
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Voting
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42
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Section 9.07
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No Delay of Rights by Meeting
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42
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ARTICLE X
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REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS
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Section 10.01
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Reports by Trustee
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42
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Section 10.02
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Reports by the Company
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43
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Section 10.03
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Securityholders’ Lists
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43
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ARTICLE XI
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CONCERNING THE TRUSTEE
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Section 11.01
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Rights of Trustees; Compensation and Indemnity
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43
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Section 11.02
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Duties of Trustee
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46
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Section 11.03
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Notice of Defaults
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47
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Section 11.04
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Eligibility; Disqualification
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48
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Section 11.05
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Resignation and Notice; Removal
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48
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Section 11.06
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Successor Trustee by Appointment
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49
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Section 11.07
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Successor Trustee by Merger
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50
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Section 11.08
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Right to Rely on Officer’s Certificate
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51
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Section 11.09
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Appointment of Authenticating Agent
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51
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Section 11.10
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Communications by Securityholders with Other Securityholders
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52
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ARTICLE XII
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SATISFACTION AND DISCHARGE; DEFEASANCE
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Section 12.01
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Applicability of Article
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52
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Section 12.02
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Satisfaction and Discharge of Indenture
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52
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iii
TABLE OF CONTENTS
(continued)
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Page
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Section 12.03
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Defeasance upon Deposit of Moneys or Government Obligations
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54
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Section 12.04
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Repayment to Company
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55
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Section 12.05
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Indemnity for Government Obligations
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55
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Section 12.06
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Deposits to Be Held in Escrow
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55
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Section 12.07
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Application of Trust Money
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56
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Section 12.08
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Deposits of
Non-U.S.
Currencies
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56
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ARTICLE XIII
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IMMUNITY OF CERTAIN PERSONS
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Section 13.01
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No Personal Liability
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56
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ARTICLE XIV
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SUPPLEMENTAL INDENTURES
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Section 14.01
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Without Consent of Securityholders
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57
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Section 14.02
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With Consent of Securityholders; Limitations
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58
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Section 14.03
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Trustee Protected
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60
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Section 14.04
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Effect of Execution of Supplemental Indenture
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60
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Section 14.05
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Notation on or Exchange of Securities
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60
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Section 14.06
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Conformity with TIA
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60
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ARTICLE XV
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SUBORDINATION OF SECURITIES
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Section 15.01
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Agreement to Subordinate
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60
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Section 15.02
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Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities
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61
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Section 15.03
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No Payment on Securities in Event of Default on Senior Indebtedness
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62
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Section 15.04
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Payments on Securities Permitted
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63
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Section 15.05
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Authorization of Securityholders to Trustee to Effect Subordination
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63
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Section 15.06
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Notices to Trustee
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63
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Section 15.07
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Trustee as Holder of Senior Indebtedness
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64
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Section 15.08
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Modifications of Terms of Senior Indebtedness
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64
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Section 15.09
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Reliance on Judicial Order or Certificate of Liquidating Agent
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64
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Section 15.10
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Satisfaction and Discharge; Defeasance and Covenant Defeasance
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64
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Section 15.11
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Trustee Not Fiduciary for Holders of Senior Indebtedness
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65
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iv
TABLE OF CONTENTS
(continued)
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Page
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ARTICLE XVI
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MISCELLANEOUS PROVISIONS
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Section 16.01
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Certificates and Opinions as to Conditions Precedent
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65
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Section 16.02
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Trust Indenture Act Controls
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66
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Section 16.03
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Notices to the Company and Trustee
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66
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Section 16.04
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Notices to Securityholders; Waiver
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67
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Section 16.05
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Legal Holiday
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67
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Section 16.06
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Effects of Headings and Table of Contents
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67
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Section 16.07
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Successors and Assigns
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68
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Section 16.08
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Severability
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68
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Section 16.09
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Benefits of Indenture
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68
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Section 16.10
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Counterparts
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68
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Section 16.11
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Governing Law; Waiver of Trial by Jury
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68
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Section 16.12
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Force Majeure
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68
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EXHIBITS
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EXHIBIT A
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Form of Security
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v
INDENTURE dated as of January 17, 2017, between TECH DATA CORPORATION, a Delaware corporation
(the “
Company
”), and MUFG Union Bank, N.A., a national banking association, as trustee (the “
Trustee
”).
WITNESSETH:
WHEREAS, the
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debentures, notes, bonds or other evidences of indebtedness (the “
Securities
”) in an unlimited aggregate principal amount to be
issued from time to time in one or more series as provided in this Indenture; and
WHEREAS, all things necessary to make this Indenture a
valid and legally binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
That, in consideration of the premises and the purchase of the Securities by the Holders (as defined below) thereof for the
equal and proportionate benefit of all of the present and future Holders of the Securities, each party agrees and covenants as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Definitions
.
(a) Unless otherwise defined in this Indenture or the context otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act.
(b) Unless the context otherwise requires, the terms defined in this Section 1.01(b) shall for all
purposes of this Indenture have the meanings hereinafter set forth, the following definitions to be equally applicable to both the singular and the plural forms of any of the terms herein defined:
“
Affiliate
” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
” have meanings correlative to the foregoing.
“
Authenticating Agent
” has the meaning provided in Section 11.09.
“
Authorized Officers
” means the Chief Executive Officer, Chief Financial Officer, Treasurer, Controller or Secretary of the
Company.
“
Bankruptcy Code
” means Title 11 of the United States Code.
“
Board of Directors
” means either the board of directors of the Company or the
executive or any other committee of that board duly authorized to act in respect hereof.
“
Board Resolution
” means a copy
of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“
Business Day
” means, when used with respect to any Place of Payment or any other particular location referred to in
this Indenture or in the Securities, any day except a Saturday, Sunday or any other day on which commercial banks in such Place of Payment or other location are authorized or obligated by law or executive order to close.
“
Capital Stock
” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such
debt securities include any right of participation with Capital Stock.
“
Code
” means the Internal Revenue Code of 1986 as
in effect on the date hereof.
“
Company
” means the Person named as the “
Company
” in the recitals, 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 Order
” means a written request or order signed in the name of the Company by any of the Authorized Officers and
delivered to the Trustee.
“
Corporate Trust Office
,” or other similar term, means the principal 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 MUFG Union Bank, N.A., 445 South Figueroa Street, Suite 401 Los Angeles, CA 90071, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).
“
Currency
” means U.S. Dollars or Foreign
Currency.
2
“
Currency Determination Agent
” has the meaning provided in Section 3.11(d).
“
Default
” has the meaning provided in Section 11.03.
“
Defaulted Interest
” has the meaning provided in Section 3.08(b).
“
Depositary
” means, with respect to the Securities of any series issuable in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“
Depositary
” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “
Depositary
” as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
“
Designated Currency
” has the meaning provided in
Section 3.11(a).
“
Discharged
” has the meaning provided in Section 12.03.
“
Event of Default
” has the meaning provided in Section 7.01.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Exchange Rate
” has the meaning provided in Section 3.11(d).
“
Floating Rate Security
” means a Security that provides for the payment of interest at a variable rate determined
periodically by reference to an interest rate index specified pursuant to Section 3.01.
“
Foreign Currency
” means a
currency issued by the government of any country other than the United States or a composite currency, the value of which is determined by reference to the values of the currencies of any group of countries.
“
GAAP
” means, with respect to any computation required or permitted hereunder, shall mean generally accepted accounting
principles in effect in the United States as in effect from time to time.
“
Global Security
” means any Security that
evidences all or part of a series of Securities, issued in fully-registered certificated form to the Depositary for such series in accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(f).
“
Government Obligations
” means securities that are (i) direct obligations of the United States for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States, that, in either case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such
3
custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depositary receipt.
“
Holder
,” “
Holder of Securities,
” or “
Securityholder
” mean the Person in whose name
Securities are registered in the Register.
“
Indebtedness
” means any and all obligations of a Person for money borrowed
which, in accordance with GAAP, would be reflected on the balance sheet of such Person as a liability on the date as of which Indebtedness is to be determined.
“
Indenture
” means this instrument and all indentures supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities established as contemplated by Section 3.01.
“
Interest
Payment Date
” means, with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“
Mandatory Sinking Fund Payment
” has the meaning provided in Section 5.01(b).
“
Maturity
” means, with respect to any Security, the date on which the principal of such Security shall become due and payable
as therein and herein provided, whether by declaration, call for redemption or otherwise.
“
Members
” has the meaning
provided in Section 3.03(h).
“
Notice of Default
” has the meaning provided in Section 7.01(d).
“
Officer’s Certificate
” means a certificate signed by any of the Authorized Officers and delivered to the Trustee. Each
such certificate shall include the statements provided for in Section 16.01 if and to the extent required by the provisions of such Section.
“
Opinion of Counsel
” means an opinion in writing reasonably acceptable to the Trustee signed by legal counsel, who may be an
employee of or counsel to the Company or who may be other counsel, that meets the applicable requirements provided for in Section 16.01.
“
Optional Sinking Fund Payment
” has the meaning provided in Section 5.01(b).
“
Original Issue Discount Security
” means any Security that is issued with “original issue discount” within the
meaning of Section 1273(a) of the Code and the regulations thereunder and any other Security designated by the Company as issued with original issue discount for United States federal income tax purposes.
“
Outstanding
” means, when used with respect to Securities, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
4
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(2) Securities or portions thereof for which 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 or Securities
as to which the Company’s obligations have been Discharged;
provided
,
however
, that if such Securities or portions thereof 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; and
(3) Securities that have been paid pursuant to Section 3.07(b) 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 a Responsible Officer of the Trustee proof
satisfactory to it that such Securities are held by a protected 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 Securities of a series
Outstanding have performed any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) hereunder, Securities owned by the Company or any other obligor upon the Securities
of such series or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding unless the Company, such Affiliate or such other obligor owns all of the Securities of such series, except that, in
determining whether the Trustee shall be protected in relying upon any such action, only Securities of such series that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that 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 to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon such
Securities or any Affiliate of the Company or of such other obligor. In case of a dispute as to such right, the decision of the Trustee upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all such Securities, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to the
provisions of Section 11.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all such Securities not listed therein are Outstanding for the
purpose of any such determination. In determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder, the principal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding for such purpose shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02 and
the principal amount of a Security denominated in a Foreign Currency that shall be deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(c).
5
“
Paying Agent
” means any Person authorized by the Company to pay the principal
of, premium, if any, or interest on any Securities on behalf of the Company. The Company may act as Paying Agent with respect to Securities of any series issued hereunder.
“
Person
” shall mean an individual, a corporation, a limited liability company, a partnership, an association, a joint stock
company, a trust, an unincorporated organization or a government or an agency or political subdivision thereof.
“
Place of
Payment
” has the meaning provided in Section 3.01(h).
“
Predecessor Security
” means, with respect to any
Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07 in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“
Record
Date
” means, with respect to any interest payable on any Security on any Interest Payment Date, the close of business on such date specified in such Security for the payment of interest pursuant to Section 3.01.
“
Redemption Date
” means, when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such
redemption by or pursuant to this Indenture and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01, shall be an Interest Payment Date only.
“
Redemption Price
” means, when used with respect to any Security to be redeemed, in whole or in part, the price at which it
is to be redeemed pursuant to the terms of the Security and this Indenture.
“
Register
” has the meaning provided in
Section 3.05(a).
“
Registrar
” has the meaning provided in Section 3.05(a).
“
Responsible Officer
” means, with respect to the Trustee, any officer assigned to the Corporate Trust Department (or any
successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture, and any other officer of the Trustee to whom any corporate trust matter
is referred because of such officer’s knowledge of and familiarity with the particular subject.
“
SEC
” means the
United States Securities and Exchange Commission, as constituted from time to time.
“
Security
” or
“
Securities
” means any security or securities, as the case may be, duly authenticated by the Trustee and delivered under this Indenture.
“
Security Custodian
” means the custodian with respect to any Global Security appointed by the Depositary, or any successor
Person thereto, and shall initially be the Trustee.
6
“
Senior Indebtedness
” means the principal of, premium, if any, or interest on
(x) Indebtedness of the Company, whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any Indebtedness of the Company which when incurred, and without respect to
any election under Section 1111(b) of the Bankruptcy Code, was without recourse to the Company, (b) any Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness to any employee of the Company, (d) any liability for
taxes, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate in right of payment to any other Indebtedness of the Company, and (y) renewals, extensions, modifications and refundings of any such
Indebtedness. For purposes of the foregoing, the phrase “subordinated in right of payment” means debt subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated in
right of payment to secured indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens, second liens and other contractual arrangements that provide for priorities among Holders of the same or different issues of
indebtedness with respect to any collateral or the proceeds of collateral shall not constitute subordination in right of payment. This definition may be modified or superseded by a supplemental indenture.
“
Special Record Date
” has the meaning provided in Section 3.08(b)(i).
“
Stated Maturity
” means, when used with respect to any Security or any installment of interest thereon, the date specified in
such Security as the fixed date on which the principal (or any portion thereof) of or premium, if any, on such Security or such installment of interest is due and payable.
“
Subsidiary
” means, when used with respect to any Person, any corporation, limited liability company, association,
partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’
agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity that is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a combination thereof).
For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.
“
Successor Company
” has
the meaning provided in Section 3.06(i).
“
Trade Payables
” means accounts payable or any other Indebtedness or monetary
obligations to trade creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities).
“
Trust Indenture Act
” or “
TIA
” means the Trust Indenture Act of 1939, as amended.
7
“
Trustee
” means the Person named as the “
Trustee
” in the first
paragraph of this Indenture until a successor Trustee shall have become such with respect to one or more series of Securities 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. Dollars
” or “
$
”means such currency of the United States as at the time of payment shall be legal
tender for the payment of public and private debts.
“
United States
” shall mean the United States of America (including
the States and the District of Columbia), its territories and its possessions and other areas subject to its jurisdiction.
Section 1.02
Rules of Construction
. For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) 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;
(b)
references to “
Article
” or “
Section
” or other subdivision herein are references to an Article, Section or other subdivision of the Indenture, unless the context otherwise requires; and
(c) references to any agreement, instrument, statute or regulation defined or referred to herein or in any instrument establishing the terms
of any Securities (or executed in connection therewith) are references to such agreement, instrument, statute or regulation as from time to time amended, modified, supplemented or replaced, including (in the case of agreements or instruments) by
waiver or consent and by succession of comparable successor agreements, instruments, statutes or regulations.
ARTICLE II
FORMS OF SECURITIES
Section 2.01
Form
Generally
.
(a) The Securities of each series shall be substantially in the form set forth in Exhibit A attached hereto or as shall be established
pursuant to a Company Order, Officer’s 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 or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which any series of the Securities may be listed or of any automated quotation system on which any such
series may be quoted, or to conform to usage, all as determined by the officers executing such Securities as conclusively evidenced by their execution of such Securities.
8
(b) The terms and provisions of the Securities shall constitute, and are hereby expressly made, a
part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby.
Section 2.02
Form of Trustee
’
s Certificate of Authentication
.
(a) Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose or entitle the Holder thereof to any right or benefit under this Indenture.
(b) Each Security shall be dated the date of its authentication.
(c) The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned Indenture.
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Date of authentication:
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MUFG UNION BANK, N.A
as Trustee
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By:
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Authorized Signatory
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Section 2.03
Form of Trustee
’
s Certificate of Authentication by an Authenticating
Agent
. If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s certificate of authentication by such Authenticating Agent to be borne by Securities of each such series
shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned Indenture.
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Date of authentication:
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MUFG UNION BANK, N.A
as Trustee
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By:
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Authorized Signatory
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9
ARTICLE III
THE DEBT 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 from time to time in one or more series. There shall be set forth in a Company Order, Officer’s Certificate or in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities of such series
from the Securities of all other series, except to the extent that additional Securities of an existing series are being issued);
(b) any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c) the dates on which or periods during which the
Securities of the series may be issued, and the dates on, or the range of dates within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such date or dates shall be determined
or extended;
(d) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the
determination of Holders to whom interest is payable on such Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest payments and the duration of such extension or
deferral;
(e) if other than U.S. Dollars, the Currency in which Securities of the series shall be denominated or in which payment of the
principal of, premium, if any, or interest on the Securities of the series shall be payable and any other terms applicable thereto;
(f)
if the amount of payment of principal of, premium, if any, or interest on, the Securities of the series may be determined with reference to an index, formula or other method including, but not limited to, an index based on a Currency or Currencies
other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g) if the
principal of, premium, if any, or interest on, Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such
election, the period or periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of determining the Exchange Rate (in addition to or in lieu of the provision set forth in Section 3.11)
between the Currency in which the Securities are denominated or payable without such election and the Currency in which the Securities are to be paid if such election is made;
10
(h) the place or places, if any, in addition to or instead of the Corporate Trust Office of the
Trustee where the principal of, premium, if any, and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration of transfer, exchange or conversion, and the place or places where
notices and demands to or upon the Company in respect of the Securities of such series may be made (each such place, the “
Place of Payment
”);
(i) the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(j)
the obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund, amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the
period or periods within which or the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(k) if other than denominations of $2,000 and multiples of $1,000 in excess thereof, the denominations in which Securities of
the series shall be issuable;
(l) if other than the principal amount thereof, the portion of the principal amount of the Securities of
the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02;
(m) whether the
Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which such Securities may be issued;
(n) provisions, if any, for the defeasance of Securities of the series in whole or in part and any addition or change in the provisions in
this Indenture related to satisfaction and discharge;
(o) whether the Securities of the series are to be issued in whole or in part in
the form of one or more Global Securities and, in such case, (i) the Depositary for such Global Security or Securities, (ii) the form of legend in addition to or in lieu of that in Section 3.03(f) which shall be borne by such Global
Security, if any, and (iii) the terms and conditions, if any, upon which interests in such Global Security or Securities may be exchanged in whole or in part for the individual Securities represented thereby;
(p) the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security of the
series to be issued;
(q) the form of the Securities of the series;
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(r) if the Securities of the series are to be convertible into or exchangeable for any securities
or property of any Person (including the Company), the terms and conditions upon which such Securities shall be so convertible or exchangeable, and any additions or changes to permit or facilitate such conversion or exchange;
(s) whether the Securities of such series are subject to subordination and the terms of such subordination;
(t) whether the Securities of such series shall be secured;
(u) any restriction or condition on the transferability of the Securities of such series;
(v) any addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of such
series;
(w) any addition or change in the provisions related to supplemental indentures set forth in Sections 14.01, 14.02 and 14.04
which applies to Securities of such series;
(x) provisions, if any, granting special rights to Holders upon the occurrence of specified
events;
(y) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02 and any addition or change in the provisions set forth in Article VII which applies to Securities of the
series;
(z) any addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(aa) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 14.01, but which may modify or delete any provision of this Indenture insofar as it applies to such series), including any terms which may be required by or advisable under the laws of the United States or regulations
thereunder or advisable (as determined by the Company) in connection with the marketing of Securities of the series.
All Securities of
any one series shall be substantially identical, except as to denomination and except as may otherwise be provided herein or set forth in a Company Order, Officer’s Certificate or in one or more indentures supplemental hereto.
Section 3.02
Denominations
. In the absence of any specification pursuant to Section 3.01 with respect to Securities of any
series, the Securities of such series shall be issuable only as Securities in denominations of $2,000 and multiples of $1,000 in excess thereof, and shall be payable only in U.S. Dollars.
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Section 3.03
Execution, Authentication, Delivery and Dating
.
(a) The Securities shall be executed in the name and on behalf of the Company by any of the Authorized Officers. Such signatures may be the
manual or facsimile signatures of the present or any future such officer. If the Person whose signature is on a Security no longer holds that office at the time the Security is authenticated and delivered, the Security shall nevertheless be valid.
(b) 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, if required pursuant to Section 3.01, a supplemental indenture, Company Order or
Officer’s Certificate setting forth the terms of the Securities of a series. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the Company. The Company Order shall specify the principal amount of
Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.
(c) In authenticating the
first Securities of any series and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon, an
Officer’s Certificate, prepared in accordance with Section 16.01 stating that the conditions precedent, if any, provided for in the Indenture have been complied with, and an Opinion of Counsel, prepared in accordance with
Section 16.01 and substantially in the form set forth below:
(i) that the form or forms of such Securities have been
established in accordance with Article II and Section 3.01 and in conformity with the other provisions of this Indenture;
(ii) that the terms of such Securities have been established in accordance with Section 3.01 and in conformity with the
other provisions of this Indenture;
(iii) 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, binding and enforceable obligations of the Company, subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and
(iv) that all conditions precedent, if any, provided for in the Indenture in respect of the authentication and delivery by the
Company of such Securities have been complied with.
Notwithstanding the provisions of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate or Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security
of such series if such Officer’s Certificate or Opinion of Counsel is delivered at or prior to the authentication upon original issuance of the first
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Security of such series to be issued; provided that nothing in this clause (c) is intended to derogate Trustee’s rights to receive an Officer’s Certificate and Opinion of Counsel
under Section 16.01.
(d) The Trustee shall have the right to decline to authenticate and deliver the Securities under this
Section 3.03 if the issue of the Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise.
(e) Each Security shall be dated the date of its authentication.
(f) If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect (or such legend as determined pursuant to Section 3.01(o)):
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
The aggregate principal amount of each Global Security may from time to time be increased or decreased by
adjustments made on the records of the Security Custodian, as provided in this Indenture.
(g) Each Depositary designated pursuant to
Section 3.01 for a Global Security in registered form must, at the time of its designation and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or
regulation.
(h) Members of, or participants in, the Depositary (“
Members
”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their
agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar or any of their agents from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a
beneficial interest in any Global Security. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to
take under this Indenture or the Securities.
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(i) 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 one of the forms provided for herein duly executed by the Trustee or by an Authenticating Agent by manual signature of an authorized signatory of
the Trustee or such Authenticating Agent, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
Section 3.04
Temporary Securities
.
(a) 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 that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such temporary Securities may determine, as conclusively evidenced by their execution of such temporary
Securities. Any such temporary Security may be in global form, representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Security or Securities in lieu of which it is issued.
(b) If temporary Securities of any series are issued, the Company shall cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of such temporary Securities at the office or
agency maintained by the Company in a Place of Payment for such purposes provided in Section 6.02, 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 a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor. 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.
(c) Upon any exchange of a
portion of a temporary Global Security for a definitive Global Security or for the individual Securities represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to
reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.
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Section 3.05
Registrar
.
(a) The Company shall keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable (the
“
Registrar
”), a security register for the registration and the registration of transfer or of exchange of the Securities (the registers 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 “
Register
”), as in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall be in written form or in any
other form capable of being converted into written form within a reasonable time. The Company may have one or more
co-Registrars;
the term “
Registrar
” includes any
co-registrar.
(b) The Company shall enter into an appropriate agency agreement with any Registrar or
co-Registrar
not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent.
If the Company fails to maintain a Registrar for any series, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 11.01. The Company or any Affiliate thereof may act as Registrar,
co-Registrar
or transfer agent.
(c) The Company hereby appoints the Trustee at its Corporate Trust
Office as Registrar in connection with the Securities and this Indenture, until such time as another Person is appointed as such in replacement of the Trustee as such. No Person shall at any time be appointed as or act as Registrar unless such
Person is at such time empowered under applicable law to act as such Registrar.
Section 3.06
Transfer and Exchange
.
(a)
Transfer
.
(i) Upon surrender for registration of transfer of any Security of any series at the Registrar, the Company shall execute, and
the Trustee or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series for like aggregate principal amount of any authorized denomination or denominations. The
transfer of any Security shall not be valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his, her or its attorney duly authorized in writing.
(ii) Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the
individual Securities represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
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(b)
Exchange
.
(i) At the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be
exchanged for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender of the Securities to be exchanged at the Registrar.
(ii) Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to receive.
(c)
Exchange of Global Securities for Individual
Securities
.
Except as provided below, owners of beneficial interests in Global Securities shall not be entitled to receive individual Securities.
(i) Individual Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such
interests if: (A) at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03(g) and, in each case, a successor Depositary is not appointed by the Company within 90 days of such notice, or (B) the Company executes and delivers to the Trustee and the Registrar an
Officer’s Certificate stating that such Global Security shall be so exchangeable.
In connection with the exchange of
an entire Global Security for individual Securities pursuant to this subsection (c), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Securities of such series, shall authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of individual Securities of authorized denominations.
(ii) The owner of a beneficial interest
in a Global Security shall be entitled to receive an individual Security in exchange for such interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from the Holder of a
Global Security directing the Security Custodian and Registrar to (x) issue one or more individual Securities in the amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an
equivalent amount of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:
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(A) the Security Custodian and Registrar shall notify the Company and the Trustee
of such instructions, identifying the owner and amount of such beneficial interest in such Global Security;
(B) the
Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series, shall authenticate and deliver to such beneficial owner individual Securities in an
equivalent amount to such beneficial interest in such Global Security; and
(C) the Security Custodian and Registrar shall
decrease such Global Security by such amount in accordance with the foregoing. In the event that the individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Holder of a Global
Security to issue such individual Securities, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 7.07, the right of any beneficial Holder of Securities to pursue such remedy with
respect to the portion of the Global Security that represents such beneficial Holder’s Securities as if such individual Securities had been issued.
(iii) If specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such
series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for individual Securities of such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by
such Depositary a new individual Security or Securities of the same series, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global
Security; and
(B) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.
(iv) In any exchange provided for in clauses (i) through (iii), the Company shall execute and the Trustee shall
authenticate and deliver individual Securities in registered form in authorized denominations.
(v) Upon the exchange in
full of a Global Security for individual Securities, such Global Security shall be cancelled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global
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Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
(d) All Securities issued upon any registration of transfer or exchange of Securities shall be valid
obligations of the Company evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer or exchange.
(e) Every Security presented or surrendered for registration of transfer or exchange, or for payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its attorney
duly authorized in writing.
(f) No service charge shall be made for any registration of transfer or exchange of Securities. The Company
or the Trustee may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than those expressly provided in
this Indenture to be made at the Company’s own expense or without expense or charge to the Holders.
(g) The Company shall not be
required to (i) register, transfer or exchange Securities of any series during a period beginning at the opening of business 15 calendar days before the day of the transmission of a notice of redemption of Securities of such series selected for
redemption under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
(h) Prior to the due presentation for registration of transfer or exchange of any Security, the Company,
the Trustee, the Paying Agent, the Registrar, any
co-Registrar
or any of their agents may deem and treat the Person in whose name a Security is registered as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for all purposes whatsoever, and none of the Company, the Trustee, the Paying Agent, the Registrar, any
co-Registrar
or any of their agents shall be affected by any notice to the contrary.
(i) In case
a successor Company (“
Successor Company
”) has executed an indenture supplemental hereto with the Trustee pursuant to Article XIV, any of the Securities authenticated or delivered prior to such transaction may, from time to time, at
the request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as may be appropriate, but otherwise identical to the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver Securities as specified in such Company Order for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a Successor Company pursuant to this Section 3.06 in exchange or substitution for or upon registration of transfer of
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any Securities, such Successor Company, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities
authenticated and delivered in such new name.
(j) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(k) Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section 3.07
Mutilated, Destroyed, Lost and Stolen Securities
.
(a) If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security, a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding, and neither gain nor loss in interest shall result from
such exchange or substitution.
(b) 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 the amount due on such Security in accordance with its terms.
(c) Upon the issuance of any new Security under this Section 3.07, the Company or the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(d) Every new Security of any series issued pursuant to this Section 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.
(e) The provisions of this Section 3.07 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 3.08
Payment of Interest; Interest Rights Preserved
.
(a) 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 such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the
Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the option of the Company, by check mailed to the address of the Person entitled thereto
as such address shall appear in the Register or, in accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the Holder.
(b) Any interest on any Security that 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 Record Date by virtue of his, her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “
Special Record
Date
”), 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 such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not less than 10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such Securities at their addresses as they appear in the Register, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (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 (ii).
(ii) The Company may make payment of any
Defaulted Interest on Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed or of any automated quotation system on which any such Securities may be quoted, and
upon such notice as may be
21
required by such exchange or quotation system, as applicable, 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.
(c) Subject to the foregoing provisions in this Section 3.08, each Security delivered under this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09
Cancellation
. Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities
surrendered for payment, redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly
cancelled by it and, if surrendered to the Trustee, 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 that the Company may have
acquired in any manner whatsoever, 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. The Trustee shall dispose of all cancelled Securities held by it in accordance with its then customary procedures, unless otherwise directed by a Company Order, and deliver a certificate of such disposal to the
Company upon its request therefor. The acquisition of any Securities by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such Securities are surrendered to the Trustee for
cancellation.
Section 3.10
Computation of Interest
. Except as otherwise specified pursuant to 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
Currency of Payments in Respect of Securities
.
(a) The Company may provide pursuant to Section 3.01 for Securities of any series that (i) the obligation, if any, of the Company to
pay the principal of, premium, if any, and interest on, the Securities of any series in a Foreign Currency or U.S. Dollars (the “
Designated Currency
”) as may be specified pursuant to Section 3.01 is of the essence and agrees
that, to the fullest extent possible under applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (ii) the obligation of the Company to make payments in the Designated Currency of the principal of and
premium, if any, and interest on such Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency (after any premium and cost of exchange) on the business day in the country of issue of the Designated Currency or in the
international banking community (in the case of a composite currency) immediately following the day on which such Holder receives such payment; (iii) if the amount in the Designated Currency that may be so purchased for any reason falls short
of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (iv) any obligation
22
of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
Notwithstanding the foregoing, unless otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of, premium, if any, and interest on, Securities of such series shall be made in U.S. Dollars.
(b) If the principal of, premium, if any, or interest on any Security is payable in a Foreign Currency and such Currency is not available to
the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company shall be entitled to satisfy its obligations to Holders of the Securities by making such payment
in U.S. Dollars in an amount equivalent of the amount payable in such other Currency at the Exchange Rate as determined pursuant to clause (d) below. Notwithstanding any provisions to the contrary herein, any payment made under such
circumstances in U.S. Dollars where the required payment is in a Currency other than U.S. Dollars shall not constitute an Event of Default under this Indenture.
(c) For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an action that requires that a
specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination by the Trustee of amounts due and unpaid for the principal of, premium, if any, and interest on, the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal of, premium, if any, and interest on, the Outstanding Securities denominated in a Foreign Currency shall be the amount in U.S. Dollars based upon the Exchange Rate as
determined pursuant to clause (d) below (or as specified pursuant to Section 3.01, if applicable) for Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or as of
the date of such decision or determination by the Trustee, as the case may be.
(d) Any decision or determination to be made regarding the
Exchange Rate shall be made by the Company or an agent appointed by the Company (the Company, in such capacity, or such agent, the “
Currency Determination Agent
”);
provided
that such agent shall accept such appointment in
writing and the terms of such appointment shall, in the opinion of the Company at the time of such appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section 3.01 for the
making of such decision or determination. Unless otherwise specified pursuant to Section 3.01, “
Exchange Rate
” shall mean, for any Currency, the noon buying rate in New York City for cable transfers for such Currency as the
applicable Exchange Rate, as such rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available rate. All
decisions and determinations of such agent regarding the Exchange Rate shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of the Securities.
Section 3.12
CUSIP Numbers
. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange, as a convenience to Holders, with respect to such series;
provided
that any such notice may state that
23
no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP, ISIN or other similar numbers.
ARTICLE IV
REDEMPTION OF SECURITIES
Section 4.01
Applicability of Right of Redemption
. Redemption of Securities (other than pursuant to a sinking fund, amortization
or analogous provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for Securities of any series) in accordance with this Article;
provided
,
however
,
that if any such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
Section 4.02
Selection of Securities to be Redeemed
.
(a) If the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at least 15
calendar days (or such shorter period acceptable to the Trustee) prior to the date the notice of redemption is to be mailed, notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the
Trustee shall select either pro rata, by lot or in such other manner as the Trustee shall deem appropriate (subject to the procedures of the Depositary) and which may provide for the selection for redemption of a portion of the principal amount of
any Security of such series;
provided
that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. In any case
where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate principal amount so registered as if it were represented by one Security of such series.
(b) 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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 4.03
Notice of Redemption
.
(a) Notice of redemption shall be given by the Company or, at the Company’s request, by the Trustee in
the name and at the expense of the Company, not less than 30 nor more than 60 calendar days prior to the Redemption Date, to the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner provided
in Section 16.04;
provided
that the Trustee be provided with the draft notice at least 15 days prior to sending such notice of redemption. Any notice given in the manner herein provided shall be
24
conclusively presumed to have been duly given, whether or not the Holder receives such notice. Failure to give such notice, or any defect in such notice to the Holder of any Security of a series
designated for redemption, in whole or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder of any other Security of such series.
(b) All notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available) and
shall state:
(i) such election by the Company to redeem Securities of such series pursuant to provisions contained in this
Indenture or the terms of the Securities of such series in a Company Order, Officer’s Certificate or a supplemental indenture establishing such series, if such be the case;
(ii) the Redemption Date;
(iii) the Redemption Price;
(iv) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the Securities of such series to be redeemed;
(v) that on the Redemption Date the
Redemption Price shall become due and payable upon each such Security to be redeemed, and that, if applicable, interest thereon shall cease to accrue on and after said date; and
(vi) the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price.
Section 4.04
Deposit of Redemption Price
. On or prior to 11:00 a.m., New York City time, on the Redemption Date for any
Securities, 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 6.03) an amount of money in the Currency in which such
Securities are denominated (except as provided pursuant to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on that date.
Section 4.05
Securities Payable on Redemption Date
. If notice of redemption has been given as above provided, any Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest, and,
except as provided in Section 12.07, such Securities shall cease from and after the Redemption Date to be entitled to any benefit or security under the Indenture, and the Holders thereof shall have no right in respect of such Securities except
the right to receive the Redemption Price thereof and unpaid interest to the Redemption Date. 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;
provided
,
however
, that (unless otherwise provided pursuant to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities shall be payable according to the terms of
such Securities and the provisions of Section 3.08.
25
If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal thereof shall, until paid or duly provided for, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 4.06
Securities Redeemed in Part
. Any Security that is to be redeemed only in part shall be surrendered at the Corporate
Trust Office or such other office or agency of the Company as is specified pursuant to Section 3.01 with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Registrar and the Trustee duly executed by the Holder thereof or his, her or its 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, of like tenor and form, 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;
provided
that if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. In the case of a Security providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.
ARTICLE V
SINKING
FUNDS
Section 5.01
Applicability of Sinking Fund
.
(a) Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms of
such series of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise specified pursuant to Section 3.01 for Securities of such series;
provided
,
however
, that if
any such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
(b)
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “
Mandatory Sinking Fund Payment
,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “
Optional Sinking Fund Payment
.” If provided for by the terms of Securities of any series, the cash amount of any Mandatory Sinking Fund Payment may be subject to
reduction as provided in Section 5.02.
Section 5.02
Mandatory Sinking Fund Obligation
. The Company may, at its option,
satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable form theretofore purchased or otherwise
acquired by the Company or redeemed at the election of the Company pursuant to Section 4.03 or (b) receiving credit for Securities of
26
such series (not previously so credited) acquired by the Company and theretofore delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount
equal to the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the Company shall elect to so satisfy any
Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee not less than 45 calendar days prior to the relevant sinking fund payment date a written notice signed on behalf of the Company by any of its Authorized Officers, which shall
designate the Securities (and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore delivered) in transferable form. In case of the failure of the Company, at or before
the time so required, to give such notice and deliver such Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
Section 5.03
Optional Redemption at Sinking Fund Redemption Price
. In addition to the sinking fund requirements of
Section 5.02, to the extent, if any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund Payment with respect to such Securities. Unless otherwise provided by such terms,
(a) to the extent that the right of the Company to make such Optional Sinking Fund Payment is not exercised in any year, it shall not be cumulative or carried forward to any subsequent year, and (b) such optional payment shall operate to
reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities of the same series. If the Company intends to exercise its right to make such optional payment in any year, it shall deliver to the Trustee not less than 45 calendar
days prior to the relevant sinking fund payment date a certificate signed by any of its Authorized Officers, stating that the Company shall exercise such optional right, and specifying the amount which the Company shall pay on or before the next
succeeding sinking fund payment date. Such certificate shall also state that no Event of Default has occurred and is continuing.
Section 5.04
Application of Sinking Fund Payment
.
(a) If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000 (or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than
in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment date next following the date of such payment;
provided
that, if the date of such payment shall be a sinking fund payment date, such payment shall be applied on
such sinking fund payment date to the redemption of Securities of such series at the Redemption Price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in Section 4.02, for redemption on such sinking fund
payment date, a sufficient principal amount of Securities of such series to absorb said funds, as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption, prepared by the Company, of the
Securities to be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the option of the Company, except that the notice of redemption shall also state that the Securities are being redeemed for
the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking fund payment received in funds by the Trustee and, together with such payment, shall be applied
in accordance with the provisions of this Section 5.04. Any and all sinking fund moneys
27
held by the Trustee on the last sinking fund payment date with respect to Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall be
applied by the Trustee to the payment of the principal of the Securities of such series at Maturity.
(b) On or prior to each sinking fund
payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but not including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
(c) The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that
purpose shall be deposited with the Trustee in accordance with the terms of this Article. Except as above provided, any moneys in the sinking fund at the time any such Default or Event of Default shall occur and any moneys thereafter paid into the
sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of all the Securities of such series;
provided
,
however
, that in case such Default or Event of Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01
Payments of Principal, Premium and Interest
. The Company, for the benefit of each series of Securities, shall duly
and punctually pay or cause to be paid the principal of, premium, if any, and interest on, each series of Securities, at the dates and place and in the manner provided in the Securities and in this Indenture.
Section 6.02
Maintenance of Office or Agency; Paying Agent
.
(a) The Company shall maintain in each Place of Payment for any series of Securities an office or agency where Securities may be presented or
surrendered for payment, where Securities of such 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 and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as Paying Agent to receive all presentations, surrenders,
notices and demands.
28
(b) The Company may also from time to time designate different or additional offices or agencies
where the Securities of any series may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind any such designations;
provided
,
however
, that no such
designation or rescission shall in any manner relieve the Company of its obligations described in the preceding paragraph. The Company shall give prompt written notice to the Trustee of any such additional designation or rescission of designation
and of any change in the location of any such different or additional office or agency. The Company shall enter into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.
Section 6.03
To
Hold Payment in Trust
.
(a) If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on or before
the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their terms or as a result of the calling thereof for redemption shall become payable, the Company or such Affiliate shall segregate and
hold in trust for the benefit of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and premium, if any, or interest which shall have so become payable until such sums shall be paid to such Holders or otherwise
disposed of as herein provided, and shall notify the Trustee of its action or failure to act in that regard.
Upon any proceeding under
the Bankruptcy Code or any applicable state bankruptcy laws with respect to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall promptly replace the Company or such Affiliate as
Paying Agent.
(b) If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if
any, or interest on any series of Securities, then prior to 11:00 a.m., New York City time, on the date on which the principal of and premium, if any, or interest on any of the Securities of that series shall become payable as above provided,
whether by their terms or as a result of the calling thereof for redemption, the Company shall deposit with such Paying Agent a sum sufficient to pay such principal and premium, if any, or interest, such sum to be held in trust for the benefit of
the Holders of such Securities or the Trustee, and (unless such Paying Agent is the Trustee), the Company or any other obligor of such Securities shall promptly notify the Trustee of its payment or failure to make such payment.
(c) If the Paying Agent shall be other than the Trustee, the Company shall cause such Paying Agent 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 6.03, that such Paying Agent shall:
(i) comply with the provisions of the Trust Indenture Act applicable to it as Paying Agent;
29
(ii) hold all moneys held by it for the payment of the principal of and premium,
if any, or interest on the Securities of that series in trust for the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed of as herein provided;
(iii) give to the Trustee notice of any Default by the Company or any other obligor upon the Securities of that series in the
making of any payment of the principal of and premium, if any, or interest on the Securities of that series; and
(iv) at
any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so held in trust by such Paying Agent.
(d) Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or by any Paying Agent other than the Trustee as required by this Section 6.03, 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 a Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect
to such moneys.
(e) 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 and premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Company upon Company Order
along with any interest that has accumulated thereon as a result of such money being invested at the direction of the Company (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 of such amounts without interest thereon, 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.
Section 6.04
Merger, Consolidation and Sale of Assets
. Except as otherwise established
pursuant to Section 3.01 with respect to any series of Securities:
(a) The Company shall not consolidate with any other entity or
accept a merger of any other entity into the Company or permit the Company to be merged into any other entity, or sell or lease all or substantially all of the Company’s assets to another entity, in one transaction or a series of related
transactions, unless (i) either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic
jurisdiction and shall expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale or lease, the due and punctual payment of the principal of, premium, if
any, and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture or under the Securities to be performed or observed
30
by the Company; (ii) immediately before such consolidation, merger, sale or lease the Company is not, and immediately after such consolidation, merger, sale or lease, the Company or the
successor, transferee or lessee entity (if other than the Company) would not be, in Default in the performance of any covenant or condition of this Indenture; and (iii) the Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Section 6.04.
(b) Upon any consolidation with or merger into any other entity, or any sale, or any conveyance or lease, of all or substantially all of the
assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with which the Company is merged or to which the Company is sold 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 entity had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name
of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board of
directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such
in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Section 6.05
Compliance Certificate
. The Company shall furnish to the Trustee annually, within 120 days after the end of each
fiscal year of the Company, a brief certificate from the principal executive officer, principal financial officer, principal accounting officer or treasurer as to his or her knowledge of the Company’s compliance with all conditions and
covenants under this Indenture (which compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture) and, in the event of any Default, specifying each such Default and the nature and
status thereof of which such person may have knowledge. Such certificates need not comply with Section 16.01 of this Indenture.
Section 6.06
Conditional Waiver by Holders of Securities
. Anything in this Indenture to the contrary notwithstanding, the Company
may fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to any series of Securities if the Company shall have obtained and filed with the Trustee, prior to the time of such failure or
omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in aggregate principal amount of the Securities of such series affected by such waiver and at the time Outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, or impair any right consequent thereon and, until such waiver
shall have become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
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Section 6.07
Statement by Officers as to Default
. The Company shall deliver to the
Trustee as soon as possible and in any event within 30 calendar days after the Company becomes aware of the occurrence of any Event of Default or an event which, with the giving of notice or the lapse of time or both, would constitute an Event of
Default, an Officer’s Certificate setting forth the details of such Event of Default or Default and the action which the Company proposes to take with respect thereto.
ARTICLE VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01
Events of Default
. The term “
Event of Default
” as used in this Indenture with respect to Securities
of any series shall mean one of the following described events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the manner contemplated in Section 3.01:
(a) the failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 calendar days;
(b) the failure of the Company to pay the principal of
and premium, if any, on any Security of such series, when and as the same shall become payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), by declaration as authorized by this
Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if any, when and as the same shall become
payable by the terms of a Security of such series, which failure shall have continued unremedied for a period of 30 calendar days;
(d)
the failure of the Company, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this Indenture, including any indenture supplemental hereto pursuant to which the Securities of such series were issued
as contemplated by Section 3.01 (other than a covenant or agreement which has been expressly included in this Indenture solely for the benefit of a series of Securities other than that series and other than a covenant or agreement a default in
the performance of which is elsewhere in this Section 7.01 specifically addressed), which failure shall not have been remedied for a period of 90 calendar days after written notice shall have been given to the Company by the Trustee or shall
have been given to the Company and the Trustee by Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding, specifying such failure, requiring the Company to remedy the same and stating that such
notice is a “
Notice of Default
” hereunder;
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company in an involuntary case or proceeding under the Bankruptcy Code or any applicable state or foreign bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order
adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Company under any applicable federal, state or foreign law,
32
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs (or any similar relief granted under any foreign laws), and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive calendar days;
(f) the commencement by the Company of a voluntary case or proceeding under the Bankruptcy Code or any applicable state or foreign
bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under the Bankruptcy Code or any applicable state or foreign bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief with respect to the Company under the Bankruptcy Code or any applicable state or foreign bankruptcy, insolvency, reorganization, or other similar law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Company or of any substantial part of its property pursuant to any such
law, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such
action; or
(g) the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01.
Section 7.02
Acceleration; Rescission and Annulment
.
(a) Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the
above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance
of any such Event of Default, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding may declare the principal (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of that series) of and all accrued but unpaid interest on all the Securities of such series then Outstanding to be due and payable immediately by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs and is
continuing, then in every such case, the principal amount of all of the Securities of that series then Outstanding shall automatically, and without any declaration or any other action on the part of the Trustee or any Holder, become due and payable
immediately. Upon payment of such amounts in the Currency in which such Securities are denominated (subject to Section 3.11 and except as otherwise provided pursuant to Section 3.01), all obligations of the Company in respect of the
payment of principal of and interest on the Securities of such series shall terminate.
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(b) At any time after such a declaration of acceleration with respect to the Securities of any
series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Event of Default giving rise to such declaration of acceleration shall, without further
act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if:
(i) the Company has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities are
denominated (subject to Section 3.11 and except as otherwise provided pursuant to Section 3.01) sufficient to pay:
(A) all amounts owing to the Trustee and any predecessor trustee hereunder under Section 11.01(a) (
provided
,
however
, that all sums payable under this clause (A) shall be paid in U.S. Dollars);
(B) all arrears of
interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall be legally enforceable, on any overdue installment of interest at the rate borne by such Securities); and
(C) the principal of and premium, if any, on any Securities of such series that have become due otherwise than by such
declaration of acceleration and interest thereon;
(ii) every other Default and Event of Default with respect to Securities
of that series, other than the
non-payment
of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in
Section 7.06.
(c) No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d) For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together
with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 7.03
Other Remedies
. If the Company shall fail for a period of 30 calendar days to pay any installment of interest on the
Securities of any series or shall fail to pay the principal of and premium, if any, on any of the Securities of such series when and as the same shall become due and payable, whether at Maturity, or by call for redemption (other than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or shall fail for a period of 30 calendar days to make any required sinking fund payment as to a
34
series of Securities, then, upon demand of the Trustee, the Company shall pay to the Paying Agent, for the benefit of the Holders of Securities of such series then Outstanding, the whole amount
which then shall have become due and payable on all the Securities of such series, with interest on the overdue principal and premium, if any, and (so far as the same may be legally enforceable) on the overdue installments of interest at the rate
borne by the Securities of such series, and all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a).
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the Securities of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon the Securities of such
series, wherever situated, in the manner provided by law. Every recovery of judgment in any such action or other proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under Section
11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall be the subject of such action or proceeding. All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee
without the possession of any of the Securities and without the production of any thereof at any trial or any proceeding relative thereto.
Section 7.04
Trustee as
Attorney-in-Fact
. The
Trustee is hereby appointed, and each and every Holder of the Securities, by receiving and holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact
of such Holder, with authority to make or file (whether or not the Company shall be in Default in respect of the payment of the principal of, or interest on, any of the Securities), in its
own name and as trustee of an express trust or otherwise as it shall deem advisable, in any receivership, insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding relative to the Company or any other obligor upon the
Securities or to their respective creditors or property, any and all claims, proofs of claim, proofs of debt, petitions, consents, other papers and documents and amendments of any thereof, as may be necessary or advisable in order to have the claims
of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in any such proceeding and to collect and receive any moneys or other property payable or deliverable on any such claim, and to execute and deliver any
and all other papers and documents and to do and perform any and all other acts and things, as it may deem necessary or advisable in order to enforce in any such proceeding any of the claims of the Trustee and any predecessor trustee hereunder and
of any of such Holders in respect of any of the Securities; and any receiver, assignee, trustee, custodian or debtor in any such proceeding is hereby authorized, and each and every Holder of the Securities, by receiving and holding the same, shall
be conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor, to make any such payment or delivery only to or on the order of the Trustee, and to pay to the Trustee any amount due it and any predecessor trustee
hereunder under Section 11.01(a);
provided
,
however
, that nothing herein contained shall be deemed to authorize or empower the Trustee to consent to or accept or adopt, on behalf of any Holder of Securities, any plan of reorganization
or readjustment affecting the Securities or the rights of any Holder thereof, or to authorize or empower the Trustee to vote in respect of the claim of any Holder of any Securities in any such proceeding.
35
Section 7.05
Priorities
. Any moneys or properties collected by the Trustee, or, after
an Event of Default, any moneys or other property distributable in respect of the Company’s obligations under this Indenture, in either case with respect to a series of Securities under this Article VII shall be applied in the order following,
at the date or dates fixed by the Trustee for the distribution of such moneys or properties and, in the case of the distribution of such moneys or properties on account of the Securities of any series, upon presentation of the Securities of such
series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all
amounts due to the Trustee and any predecessor trustee under Section 11.01(a).
Second: In case the principal of the Outstanding
Securities of such series shall not have become due and be unpaid, to the payment of interest on the Securities of such series, in the chronological order of the Maturity of the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by such Securities, such payments to be made ratably to the Persons entitled thereto.
Third: In case the principal of the Outstanding Securities of such series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such series for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by the Securities of such series, and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities of such series, then to the
payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest.
Fourth: Any surplus then remaining shall be paid to the Company, its successors or assigns, or to whomsoever may be determined by a court of
competent jurisdiction to be so entitled.
Section 7.06
Control by
Securityholders
; Waiver of Past Defaults
. The
Holders of a majority in principal amount of the Securities of any series at the time Outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee hereunder, or of exercising any trust or
power hereby conferred upon the Trustee with respect to the Securities of such series;
provided
,
however
, that, subject to the provisions of Section 11.02, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel determines that the action so directed may not lawfully be taken or would involve the Trustee in personal liability. Prior to any declaration accelerating the Maturity of the
36
Securities of any series, the Holders of a majority in aggregate principal amount of such series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of
such series waive any past Default or Event of Default hereunder and its consequences except a Default in the payment of interest or any premium on or the principal of the Securities of such series or a Default in respect of a covenant or provision
that under Section 14.02 cannot be modified or amended without the consent of the Holder of each Outstanding Securities of such series affected. Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
provided
that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or
Event of Default hereunder shall have been waived as permitted by this Section 7.06, said Default or Event of Default shall for all purposes of the Securities of such series and this Indenture be deemed to have been cured and to be not
continuing.
Section 7.07
Limitation on Suits
. No Holder of any Security of any series shall have any right to institute any
action, suit or proceeding at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in each case with respect to an Event of Default with respect to such series of
Securities, unless (i) such Holder previously shall have given to the Trustee written notice of one or more of the Events of Default herein specified with respect to such series of Securities, (ii) the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding shall have requested the Trustee in writing to take action in respect of the matter complained of, (iii) there shall have been offered to the Trustee security and
indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and (iv) the Trustee, for 60 calendar days after receipt of such notification, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; and such notification, request and offer of indemnity are hereby declared in every such case to be conditions precedent to any such action, suit or proceeding by any Holder of any Security of
such series; it being understood and intended that no one or more of the Holders of Securities of such series shall have any right in any manner whatsoever by his, her, its or their action to enforce any right hereunder, except in the manner herein
provided, and that every action, suit or proceeding at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Holders of the Outstanding Securities of such series;
provided
,
however
, that nothing in this Indenture or in the Securities of such series shall affect or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on, the Securities
of such series to the respective Holders of such Securities at the respective due dates in such Securities stated, or affect or impair the right, which is also absolute and unconditional, of such Holders to institute suit to enforce the payment
thereof.
Section 7.08
Undertaking for Costs
. All parties to this Indenture and each Holder of any Security, by such
Holder’s acceptance thereof, shall be deemed to have agreed that any court may in its discretion require, in any action, suit or proceeding for the enforcement of any right or remedy under this Indenture, or in any action, suit or proceeding
against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to pay the costs of such action, suit or proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such action, suit or proceeding, having due regard to the
37
merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding instituted by any one or more Holders of Securities holding in the aggregate more than 10% in principal amount of the Securities of any series Outstanding, or to any action, suit or
proceeding instituted by any Holder of Securities of any series for the enforcement of the payment of the principal of, premium, if any, or the interest on, any of the Securities of such series, on or after the respective due dates expressed in such
Securities.
Section 7.09
Remedies Cumulative; Delay or Omission Not Waiver
. No remedy herein conferred upon or reserved to
the Trustee or to the Holders of Securities of any series is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power or
shall be construed to be a waiver of any such Default or Event of Default or an acquiescence therein; and every power and remedy given by this Article VII to the Trustee and to the Holders of Securities of any series, respectively, may be exercised
from time to time and as often as may be deemed expedient by the Trustee or by the Holders of Securities of such series, as the case may be. In case the Trustee or any Holder of Securities of any series shall have proceeded to enforce any right
under this Indenture and the proceedings for the enforcement thereof shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been adjudicated adversely to the Trustee or to such Holder of Securities, then
and in every such case, subject to any determinations in such proceedings, the Company, the Trustee and the Holders of the Securities of such series shall severally and respectively be restored to their former positions and rights hereunder, and
thereafter all rights, remedies and powers of the Trustee and the Holders of the Securities of such series shall continue as though no such proceedings had been taken, except as to any matters so waived or adjudicated.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of Action of
Securityholders
. Whenever in this Indenture it is provided that the Holders of a
specified percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced by (a) any instrument or any number of instruments of similar tenor executed by
Securityholders in person, by an agent or by a proxy appointed in writing, including through an electronic system for tabulating consents operated by the Depositary for such series or otherwise (such action becoming effective, except as herein
otherwise expressly provided, when such instruments or evidence of electronic consents are delivered to the Trustee and, where it is hereby expressly required, to the Company), or (b) by the record of the Holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article IX, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
38
Section 8.02
Proof of Execution or Holding of Securities
. Proof of the execution of
any instrument by a Securityholder or his, her or its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary public or
other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer. Where such execution is by a Person acting in other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her authority.
(b) The ownership of Securities of any series shall be proved
by the Register of such Securities or by a certificate of the Registrar for such series.
(c) The record of any Holders’ meeting shall
be proved in the manner provided in Section 9.06.
(d) The Trustee may require such additional proof of any matter referred to in this
Section 8.02 as it shall deem appropriate or necessary, so long as the request is a reasonable one.
(e) If the Company shall solicit
from the Holders of Securities of any series any action, the Company may, at its option fix in advance a record date for the determination of Holders of Securities entitled to take such action, but the Company shall have no obligation to do so. Any
such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such action may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such
record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities of such series have authorized or agreed or consented to such action, and for that purpose
the Outstanding Securities of such series shall be computed as of such record date.
Section 8.03
Persons Deemed Owners
.
(a) The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered in the
Register as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 3.08) interest, if any, 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. All payments made to any Holder, or upon his, her or its order, shall be valid, and, to the extent of
the sum or sums paid, effectual to satisfy and discharge the liability for moneys payable upon such Security.
39
(b) None of the Company, the Trustee, any Paying Agent or the Registrar shall have any
responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
Section 8.04
Effect of Consents
. After an amendment, supplement, waiver or other action becomes effective as to
any series of Securities, a consent to it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every subsequent Holder of the same Securities or portion thereof, and of any Security issued upon
the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any such Security. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
ARTICLE IX
SECURITYHOLDERS’ MEETINGS
Section 9.01
Purposes of Meetings
. A meeting of Securityholders of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article IX for any of the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to consent to the waiving of any Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the
provisions of Article VIII;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XI;
(c) to consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the
Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 9.02
Call of Meetings by Trustee
. The Trustee may at any time call a meeting of all Securityholders of all series that may
be affected by the action proposed to be taken, to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Securityholders of a series, setting forth
the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to Holders of Securities of such series at their addresses as they shall appear on the Register. Such notice shall be mailed
not less than 20 nor more than 90 calendar days prior to the date fixed for the meeting.
Section 9.03
Call of Meetings by Company
or
Securityholders
. In case at any time the Company or the Holders of at least 10% in aggregate principal amount of the Securities of a series (or of all series, as the case may be) then Outstanding that may be affected by the action
40
proposed to be taken shall have requested the Trustee to call a meeting of Securityholders of such series (or of all series), by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04
Qualifications for Voting
. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a
Holder of one or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 9.05
Regulation of Meetings
.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem fit.
(b) The Trustee shall,
by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
(c) At any meeting of Securityholders of a series, each Securityholder of such series of such Securityholder’s proxy shall be entitled to
one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him or her;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities of such series held by him or her or instruments in writing as aforesaid duly
designating him or her as the Person to vote on behalf of other Securityholders. At any meeting of the Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03, the presence of Persons holding or representing Securities in
an aggregate principal amount sufficient to take action upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum, and any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
41
Section 9.06
Voting
. The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts of the Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amounts of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
Section 9.07
No Delay of Rights by Meeting
. Nothing
contained in this Article IX shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay
in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders of such series under any of the provisions of this Indenture or of the Securities of such series.
ARTICLE X
REPORTS
BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
Section 10.01
Reports by Trustee
.
(a) So long as any Securities are Outstanding, 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 therein. If required by Section 313(a) of the TIA, the Trustee shall, within 60 calendar days after each May 15, following the date of
this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a), beginning in May 2017.
(b) The Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of this
Section 10.01, file a copy of such report with each securities exchange upon which the Securities are listed or each automated quotation system on which the Securities are quoted, if any, and also with the SEC in respect of a Security listed
and registered on a national securities exchange or automated quotation system, if any. The Company agrees to notify the Trustee when, as and if the Securities become listed or delisted on any securities exchange or admitted to trading on any
automated quotation system and of any delisting thereof.
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The Company shall reimburse the Trustee for all expenses incurred in the preparation and
transmission of any report pursuant to the provisions of this Section 10.01 and of Section 10.02.
Section 10.02
Reports
by the Company
. The Company shall file with the Trustee and the SEC, 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 in the Trust Indenture Act;
provided
that, any such information, documents or reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 30
calendar days after the same is filed with the SEC.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). It is expressly understood that materials transmitted electronically by the Company to the Trustee or filed pursuant to the SEC’s
EDGAR system (or any successor electronic filing system) shall be deemed filed with the Trustee and transmitted to Holders for purposes of this Section 10.02.
Section 10.03
Securityholders
’
Lists
. The Company covenants and agrees that it shall furnish or cause to be
furnished to the Trustee:
(a) semi-annually, within 15 calendar days after each Record Date, but in any event not less frequently than
semi-annually, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of each series to which such Record Date applies, as of such Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 calendar days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 calendar days prior to the time such list is furnished;
provided
,
however
,
that so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished.
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01
Rights of Trustees; Compensation and Indemnity
. The Trustee accepts the trusts created by this Indenture upon the
terms and conditions hereof, including the following, to all of which the parties hereto and the Holders from time to time of the Securities agree:
(a) The Trustee shall receive such compensation as the Company and the Trustee shall from time to time agree in writing for all services
rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee shall not be
43
limited by any provision of law in regard to the compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon its request for all reasonable
out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee (including the reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance caused by its own negligence, bad faith or willful misconduct.
The Company also agrees to indemnify
each of the Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense incurred without its own negligence, bad faith or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it acts), as well as 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, except those caused by its own negligence, willful misconduct or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity;
provided
,
however
, that the failure to so notify the Company shall not affect the obligations of the Company hereunder to indemnity, except to the extent
that the Company is prejudiced as a result of the Trustee’s failure to notify. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
As security for the performance of the obligations of the Company under this Section
11.01(a), the Trustee shall have a lien upon all property and funds held or collected by the Trustee as such, except funds held in trust by the Trustee to pay principal of and interest on any particular Securities. Notwithstanding any provisions of
this Indenture to the contrary, the obligations of the Company to compensate and indemnify the Trustee under this Section 11.01(a) shall survive the resignation or removal of the Trustee, any satisfaction and discharge under Article XII, the payment
of any Securities and the termination of this Indenture for any reason. In addition to and without prejudice to its other rights hereunder, when the Trustee incurs expenses or renders services after an Event of Default specified in clause
(e) or (f) of Section 7.01 occurs, the expenses and compensation for the services are intended to constitute expenses of administration under the Bankruptcy Code or any applicable state bankruptcy, insolvency or similar laws.
(b) The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and attorneys
and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(c) The Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities (except its
certificates of authentication thereon) contained, all of which are made solely by the Company; and the Trustee shall not be responsible or accountable in any manner whatsoever for or with respect to the validity or execution or sufficiency of this
Indenture or of the Securities (except its certificates of authentication thereon), and the Trustee makes no representation with respect thereto, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the statements made by it in a
44
Statement of Eligibility on Form
T-1
supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee shall not
be accountable for the use or application by the Company of any Securities, or the proceeds of any Securities.
(d) The Trustee may
consult with counsel of its selection, and, subject to Section 11.02, 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 the
Trustee hereunder in reliance thereon.
(e) The Trustee, subject to Section 11.02, may rely upon the certificate of the Secretary or
one of the Assistant Secretaries of the Company as to the adoption of any Board Resolution or resolution of the stockholders of the Company, and any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced
by, and 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 may rely upon, an Officer’s Certificate
of the Company (unless other evidence in respect thereof be herein specifically prescribed).
(f) Subject to Section 11.04, the
Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the TIA, may otherwise deal with the Company with the same rights it would have
had if it were not the Trustee or such agent.
(g) 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 or investment of any money received by it hereunder except as otherwise agreed in writing with the Company.
(h) Any action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time is the
Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of any Security or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall
have noted thereon the fact that such request or consent had been made or given.
(i) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
(j) The Trustee shall not be under any obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of any of the Holders of the Securities, pursuant to any provision of this Indenture, unless one or more of the Holders of the Securities shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred by it therein or thereby.
45
(k) The Trustee shall not be liable for any action taken, suffered or omitted to be taken by it
in good faith and believed by it to be authorized or within its discretion or within the rights or powers conferred upon it by this Indenture.
(l) The Trustee shall not be deemed to have knowledge or be charged with notice of any Default or Event of Default with respect to any
Securities unless a Responsible Officer of the Trustee has actual knowledge thereof or unless the Holders of not less than 25% of the Outstanding Securities notify the Trustee thereof by a written notice to the Trustee that is received by the
Trustee at its Corporate Trust Office and such notice references such Securities and this Indenture.
(m) 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;
provided
,
however
, that the Trustee may, but shall not be required to, make further inquiry or investigation into such facts or matters as it may see fit at the expense of the Company and shall incur no liability of any kind
by reason of such inquiry or investigation.
(n) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other person employed to act hereunder.
(o) In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(p) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded.
(q) The permissive right of the Trustee to take or refrain from taking
action hereunder shall not be construed as a duty.
Section 11.02
Duties of Trustee
.
(a) If one or more of the Events of Default specified in Section 7.01 with respect to the Securities of any series shall have happened,
then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Unless and until an Event of Default
specified in Section 7.01 with respect to the Securities of any series shall have happened which at the time is continuing,
46
(i) the Trustee undertakes to perform such duties and only such duties with
respect to the Securities of that series as are specifically set out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose duties and obligations shall be determined solely by the
express provisions of this Indenture; and
(ii) the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, in the absence of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions of this Indenture;
provided
that, in the case of any
such certificates or opinions which, by the provisions of this Indenture, are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(c) None of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action,
negligent failure to act, or its own willful misconduct, except that, anything in this Indenture contained to the contrary notwithstanding,
(i) the Trustee shall not be liable to any Holder of Securities or to any other Person for any error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable to any Holder of Securities or to any other Person with respect to any action taken or
omitted to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in Section 7.06, relating to the time, method and place of conducting any proceeding for any remedy available to it or exercising any
trust or power conferred upon it by this Indenture;
(iii) none of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise to incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and
(iv)
this subsection (c) shall not be construed to limit the effect of subsection (b) of this Section 11.02.
(d) Whether or not
therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 11.02.
Section 11.03
Notice of Defaults
. Within 90 calendar days after the occurrence thereof and if known to the Trustee, the Trustee
shall give to the Holders of the Securities of a series notice of each Default or Event of Default with respect to the Securities of such series known to the Trustee, by transmitting such notice to Holders at their addresses as the same shall then
47
appear on the Register, unless such Default shall have been cured or waived before the giving of such notice (the term “
Default
” being hereby defined to be the events specified
in Section 7.01, which are, or after notice or lapse of time or both would become, Events of Default as defined in said Section). Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest
on, any of the Securities of such series when and as the same shall become payable, or to make any sinking fund payment as to Securities of the same series, the Trustee shall be protected in withholding such notice, if and so long as a Responsible
Officer or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
Section 11.04
Eligibility; Disqualification
.
(a) The Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall have a combined capital and
surplus of at least $50 million as set forth in its most recent published annual report of condition, and shall have a Corporate Trust Office. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.04, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
(b) The Trustee
shall comply with Section 310(b) of the TIA;
provided
,
however
, that there shall be excluded from the operation of Section 310(b)(i) of the TIA any indenture or indentures under which other securities or certificates of interest or
participation in other securities of the Company are Outstanding if the requirements for such exclusion set forth in Section 310(b)(i) of the TIA are met. If the Trustee has or shall acquire a conflicting interest within the meaning of Section
310(b) of the TIA, 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. If Section 310(b) of the TIA is amended any
time after the date of this Indenture to change the circumstances under which a Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series or to change any of the definitions in connection therewith, this
Section 11.04 shall be automatically amended to incorporate such changes.
Section 11.05
Resignation
and Notice;
Removal
. The Trustee, or any successor to it hereafter appointed, may at any time resign and be discharged of the trusts hereby created with respect to any one or more or all series of Securities by giving to the Company notice in writing. Such
resignation shall take effect upon the appointment of a successor Trustee and the acceptance of such appointment by such successor Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time by the filing with
such Trustee and the delivery to the Company of an instrument or instruments in writing signed by the Holders of a majority in principal amount of the Securities of such series then Outstanding, specifying such removal and the date when it shall
become effective.
If at any time:
(1) the Trustee shall fail to comply with the provisions of Section 310(b) of the TIA 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
48
(2) the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign
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
(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, (i) the Company by written notice to the Trustee may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 315(e) of the TIA, any Securityholder 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.
Upon its resignation or removal, any Trustee shall be entitled to the payment of reasonable compensation for the services rendered hereunder
by such Trustee and to the payment of all reasonable expenses incurred hereunder and all moneys then due to it hereunder. The Trustee’s rights to indemnification and its lien provided in Section 11.01(a) shall survive its resignation or
removal, the satisfaction and discharge of this Indenture and the termination of this Indenture for any reason.
Section 11.06
Successor Trustee by Appointment
.
(a) In case at any time the Trustee shall resign, or shall be removed, or shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if 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 with respect to the Securities of one or more series, a successor Trustee 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 series) may be appointed by the Holders of a majority in aggregate principal amount of the
Securities of that or those series then Outstanding, by an instrument or instruments in writing signed in duplicate by such Holders and filed, one original thereof with the Company and the other with the successor Trustee;
provided
that,
until a successor Trustee shall have been so appointed by the Holders of Securities of that or those series as herein authorized, the Company, or, in case all or substantially all the assets of the Company shall be in the possession of one or more
custodians or receivers lawfully appointed, or of trustees in bankruptcy or reorganization proceedings (including a trustee or trustees appointed under the provisions of the Bankruptcy Code), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an instrument in writing, shall appoint a successor Trustee with respect to the Securities of such series. Subject to the provisions of Sections 11.04 and 11.05, upon the
appointment as above provided of a successor Trustee with respect to the Securities of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After any such appointment other than by the Holders of
Securities of that or those series, the
49
Person making such appointment shall forthwith cause notice thereof to be mailed to the Holders of Securities of such series at their addresses as the same shall then appear on the Register but
any successor Trustee with respect to the Securities of such series so appointed shall, immediately and without further act, be superseded by a successor Trustee appointed by the Holders of Securities of such series in the manner above prescribed,
if such appointment be made prior to the expiration of one year from the date of the mailing of such notice by the Company, or by such receivers, trustees or assignees.
(b) If any Trustee with respect to the Securities of one or more series shall resign or be removed and a successor Trustee shall not have been
appointed by the Company or by the Holders of the Securities of such series or, if any successor Trustee so appointed shall not have accepted its appointment within 30 calendar days after such appointment shall have been made, the resigning Trustee
at the expense of the Company may apply to any court of competent jurisdiction for the appointment of a successor Trustee. If in any other case a successor Trustee shall not be appointed pursuant to the foregoing provisions of this
Section 11.06 within three months after such appointment might have been made hereunder, the Holder of any Security of the applicable series or any retiring Trustee at the expense of the Company may apply to any court of competent jurisdiction
to appoint a successor Trustee. Such court may thereupon, in any such case, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Trustee.
(c) Any successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and deliver to
its predecessor Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the case may be, an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations with respect to such series of such predecessor Trustee with like effect as if originally named as Trustee hereunder, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to pay over, and such successor Trustee shall be entitled to receive, all moneys and properties held by such predecessor Trustee as
Trustee hereunder, subject nevertheless to its lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of the successor Trustee or of the Holders of at least 10% in aggregate principal amount of the Securities
of such series then Outstanding, such predecessor Trustee, upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to such successor Trustee upon the trusts herein expressed all the rights, powers and
trusts of such predecessor Trustee and shall assign, transfer and deliver to the successor Trustee all moneys and properties held by such predecessor Trustee, subject nevertheless to its lien provided for in Section 11.01(a); and, upon request of
any such successor Trustee and the Company shall make, execute, acknowledge and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Trustee all such authority, rights, powers, trusts,
immunities, duties and obligations.
Section 11.07
Successor Trustee by Merger
. Any Person into which the Trustee or any
successor to it in the trusts created by this Indenture shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee
or any such successor to it shall be a
50
party, or any Person to which the Trustee or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor
Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto;
provided
that such Person shall be otherwise qualified and eligible under this Article. In case at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture with respect to one or more series of Securities, any of such Securities shall have been authenticated but not delivered by the Trustee then in office, any successor
to such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to such Trustee may
authenticate such Securities either in the name of any predecessor Trustee hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 11.08
Right to Rely on
Officer
’
s Certificate
. Subject to Section 11.02, and subject to the provisions of Section 16.01 with respect to the certificates required thereby, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence
of bad faith or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate with respect thereto delivered to the Trustee, and such Officer’s Certificate, in the absence of
bad faith or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 11.09
Appointment of Authenticating Agent
. The Trustee may appoint an agent (the “
Authenticating Agent
”)
reasonably acceptable to the Company to authenticate the Securities, and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent shall serve. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent.
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.
Each Authenticating Agent shall at all times be a corporation organized and doing business and in good standing under the laws of the United
States, 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 million and subject to supervision or examination by federal or state
authority. If such corporation 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 Article XI, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Article
XI, it shall resign immediately in the manner and with the effect specified in this Article XI.
51
Any Person into which an Authenticating Agent may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Article XI, 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 11.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent shall serve. Any successor Authenticating Agent upon acceptance of its appointment 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 11.09.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this
Section 11.09.
Section 11.10
Communications by
Securityholders
with Other
Securityholders
. Holders
of Securities may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA with respect to such communications.
ARTICLE XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01
Applicability of Article
. If, pursuant to Section 3.01, provision is made for the defeasance of Securities of a
series and if the Securities of such series are denominated and payable only in U.S. Dollars (except as provided pursuant to Section 3.01), then the provisions of this Article shall be applicable except as otherwise specified pursuant to
Section 3.01 for Securities of such series. Defeasance provisions, if any, for Securities denominated in a Foreign Currency may be specified pursuant to Section 3.01.
Section 12.02
Satisfaction and Discharge of Indenture
. This Indenture, with respect to the Securities of any series (if all series
issued under this Indenture are not to be affected), shall, upon Company Order, cease to be of further effect (except as to any surviving rights of
52
registration of transfer or exchange of such Securities herein expressly provided for and rights to receive payments of principal of, premium, if any, and interest on, such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when,
(a) either:
(i)
all Securities of such series theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.07 and (B) 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 6.03) have been delivered to the Trustee for
cancellation; or
(ii) all Securities of such series not theretofore delivered to the Trustee for cancellation,
(A) have become due and payable, or
(B) shall become due and payable at their Stated Maturity within one year, or
(C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice by
the Trustee in the name, and at the expense, of the Company,
and in the case of (A), (B) or (C) above, the Company
has deposited or caused to be deposited with the Trustee or Paying Agent as trust funds in trust for the purpose an amount in the Currency in which such Securities are denominated (except as otherwise provided pursuant to Section 3.01)
sufficient to pay and discharge the entire Indebtedness on such Securities for principal and premium, if any, and interest to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
provided
,
however
, in the event a petition for relief under the Bankruptcy Code or any applicable state bankruptcy, insolvency or other similar law, is filed with respect to the Company within 91
days after the deposit and the Trustee is required to return the moneys then on deposit with the Trustee to the Company, the obligations of the Company under this Indenture with respect to such Securities shall not be deemed terminated or
discharged;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the
Trustee under Section 11.01 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (a)(i) of this Section 12.02, the obligations of the Trustee under Section 12.07 and Section 6.03(e) shall
survive such satisfaction and discharge.
53
Section 12.03
Defeasance upon Deposit of Moneys or Government Obligations.
At the
Company’s option, either (a) the Company shall be deemed to have been Discharged from its obligations with respect to Securities of any series on the first day after the applicable conditions set forth below have been satisfied or
(b) the Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Section 6.04 with respect to Securities of any series (and, if so specified pursuant to Section 3.01, any other
restrictive covenant added for the benefit of such series pursuant to Section 3.01) at any time after the applicable conditions set forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in an amount, or (ii) Government Obligations that through the payment of interest and principal in respect thereof in accordance
with their terms shall provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient to pay and discharge each installment of principal (including any Mandatory
Sinking Fund Payments) of, premium, if any, and interest on, the Outstanding Securities of such series on the dates such installments of interest or principal and premium are due;
provided
,
however
, in the event a petition for relief
under the Bankruptcy Code or any applicable state bankruptcy, insolvency or other similar law, is filed with respect to the Company within 91 days after the deposit and the Trustee is required to return the moneys then on deposit with the Trustee to
the Company, this condition shall be deemed never to have been satisfied in respect of such Discharge or defeasance and such Discharge or defeasance shall be deemed never to have taken effect;
(b) No Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(c) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series shall
not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise of its option under this Section 12.03 and shall be subject to federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such action had not been exercised and, in the case of the Securities of such series being Discharged, must confirm that either (i) the Company has received a ruling to that effect from or
published by the Internal Revenue Service or (ii) since the date of the Indenture there has been a change in the applicable U.S. federal income tax law; and
(d) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the Discharge of defeasance with respect to such series have been complied with.
“
Discharged
” means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities of such series (and
54
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except (A) the rights of Holders of Securities of such series to receive, from the trust
fund described in clause (a) above, payment of the principal of, premium, if any, or interest on such Securities when such payments are due, (B) the Company’s obligations with respect to Securities of such series under Sections 3.04,
3.06, 3.07, 6.02, 6.03, 12.06 and 12.07 and (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
Section 12.04
Repayment to Company
. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee) upon
Company Order any excess moneys or Government Obligations held by them at any time, including any such moneys or Government Obligations held by the Trustee under any escrow trust agreement entered into pursuant to Section 12.06. The provisions
of Section 6.03(e) shall apply to any moneys or Government Obligations held by the Trustee or any Paying Agent under this Article that remains unclaimed for two years after the Maturity of any series of Securities for which moneys or Government
Obligations have been deposited pursuant to Section 12.03.
Section 12.05
Indemnity for Government Obligations
. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Government Obligations or the principal or interest received on such Government Obligations.
Section 12.06
Deposits to Be Held in Escrow
. Any deposits with the Trustee referred to in Section 12.03 above shall be
irrevocable (except to the extent provided in Sections 12.04 and 12.07) and shall be made under the terms of an escrow trust agreement. As contemplated under this Article XII, if any Outstanding Securities of a series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund requirement, the applicable escrow trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. The agreement shall provide that, upon satisfaction of any Mandatory Sinking Fund Payment
requirements, whether by deposit of moneys, application of proceeds of deposited Government Obligations or, if permitted, by delivery of Securities, the Trustee shall pay or deliver over to the Company as excess moneys pursuant to Section 12.04
all funds or obligations then held under the agreement and allocable to the sinking fund payment requirements so satisfied.
If Securities
of a series with respect to which such deposits are made may be subject to later redemption at the option of the Company or pursuant to Optional Sinking Fund Payments, the applicable escrow trust agreement may, at the option of the Company, provide
therefor. In the case of an optional redemption in whole or in part, such agreement shall require the Company to deposit with the Trustee on or before the date notice of redemption is given funds sufficient to pay the Redemption Price of the
Securities to be redeemed together with all unpaid interest thereon to the Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver over to the Company as excess funds pursuant to Section 12.04 all funds or obligations then
held under such agreement and allocable to the Securities to be redeemed. In the case of exercise of Optional Sinking Fund Payment rights by the Company, such agreement shall, at the option of the Company, provide that upon deposit by the Company
with the Trustee of funds
55
pursuant to such exercise the Trustee shall pay or deliver over to the Company as excess funds pursuant to Section 12.04 all funds or obligations then held under such agreement for such
series and allocable to the Securities to be redeemed.
Section 12.07
Application of Trust Money
.
(a) Neither the Trustee nor any other paying agent shall be required to pay interest on any moneys deposited pursuant to the provisions of
this Indenture, except such as it shall agree with the Company in writing to pay thereon. Any moneys so deposited for the payment of the principal of, or premium, if any, or interest on the Securities of any series and remaining unclaimed for two
years after the date of the maturity of the Securities of such series or the date fixed for the redemption of all the Securities of such series at the time Outstanding, as the case may be, shall be repaid by the Trustee or such other paying agent to
the Company upon its written request and thereafter, anything in this Indenture to the contrary notwithstanding, any rights of the Holders of Securities of such series in respect of which such moneys shall have been deposited shall be enforceable
only against the Company, and all liability of the Trustee or such other paying agent with respect to such moneys shall thereafter cease.
(b) Subject to the provisions of clause (a) above, any moneys or Government Obligations which at any time shall be deposited by the
Company or on its behalf with the Trustee or any other paying agent for the purpose of paying the principal of, premium, if any, and interest on any of the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such
other paying agent in trust for the respective Holders of the Securities for the purpose for which such moneys or Government Obligations shall have been deposited;
provided
that such moneys or Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 12.08
Deposits of
Non-U.S.
Currencies
. Notwithstanding the foregoing provisions of this Article, if the Securities of any series are payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited with the Trustee
under the foregoing provisions of this Article shall be as set forth in the Officer’s Certificate or established in the supplemental indenture under which the Securities of such series are issued.
ARTICLE XIII
IMMUNITY OF CERTAIN PERSONS
Section 13.01
No Personal Liability
. No recourse shall be had for the payment of the principal of, or the premium, if any, or
interest on, any Security or for any claim based thereon or otherwise in respect thereof or of the Indebtedness represented thereby, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor thereto, either directly or through the Company or any successor thereto, whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and the Securities are solely corporate obligations, and that no personal liability whatsoever shall attach
56
to, or be incurred by, any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor thereto, either directly or through the Company or
any successor corporation, because of the incurring of the Indebtedness hereby authorized or under or by reason of any of the obligations, covenants, promises or agreements contained in this Indenture or in any of the Securities, or to be implied
herefrom or therefrom, and that all liability, if any, of that character against every such incorporator, stockholder, officer and director is, by the acceptance of the Securities and as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities expressly waived and released.
ARTICLE XIV
SUPPLEMENTAL INDENTURES
Section 14.01
Without
Consent of
Securityholders
. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any one or more of or all the following
purposes:
(a) to add to the covenants and agreements of the Company, to be observed thereafter and during the period, if any, in such
supplemental indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders of all or any series of the Securities (and if such covenants, agreements and Events of Default are to be for the
benefit of fewer than all series of Securities, stating that such covenants, agreements and Events of Default are expressly being included for the benefit of such series as shall be identified therein), or to surrender any right or power herein
conferred upon the Company;
(b) to add to or change any of the provisions of this Indenture to provide, change or eliminate any
restrictions on the payment of principal of or premium, if any, on Securities;
provided
that any such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect;
(c) to change or eliminate any of the provisions of this Indenture;
provided
that any such change or elimination shall become effective
only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision and as to which such supplemental indenture would apply;
(d) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by such successor of the
covenants and obligations of the Company contained in the Securities of one or more series and in this Indenture or any supplemental indenture;
(e) to secure any series of Securities;
(f) to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 as permitted by the terms thereof;
57
(g) to cure any ambiguity or to correct or supplement any provision contained herein or in any
indenture supplemental hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture;
(h) to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act;
(i) to add guarantors or
co-obligors
with respect to any series of
Securities;
(j) to make any change in any series of Securities that does not adversely affect in any material respect the interests of
the Holders of such Securities;
(k) to provide for uncertificated Securities in addition to certificated Securities;
(l) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities;
provided
that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities;
(m) to prohibit the authentication and delivery of additional series of Securities; or
(n) to establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be observed.
Subject to the provisions of Section 14.03, the Trustee is
authorized to join with the Company in the execution of any such supplemental indenture, to make the further agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section 14.01 may be executed by the
Company and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 14.02.
Section 14.02
With
Consent of
Securityholders
; Limitations
.
(a) With the consent of the Holders (evidenced as provided in Article VIII) of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture voting separately, the Company and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such series to be affected;
provided
,
however
, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each such series affected thereby,
58
(i) extend the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption thereof, or change the Currency in which the principal of and premium, if any, or interest on such Security is
denominated or payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02, or impair the right to
institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or materially adversely affect the economic terms of any right to convert or exchange any
Security as may be provided pursuant to Section 3.01;
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain Defaults
hereunder and their consequences provided for in this Indenture; or
(iii) modify any of the provisions of this
Section 14.02, Section 7.06 or Section 6.06, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby;
provided
,
however
, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to the “
Trustee
” and concomitant changes in this
Section 14.02 and Section 6.06, or the deletion of this proviso, in accordance with the requirements of Sections 11.06 and 14.01(f).
(b) A supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
(c) It shall not be necessary for the consent of the Securityholders under this
Section 14.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d) The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled to give a
written consent or waive compliance by the Company as authorized or permitted by this Section. Such record date shall not be more than 30 calendar days prior to the first solicitation of such consent or waiver or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section 312 of the TIA.
(e) Promptly after the execution by
the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 14.02, the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of
Securities at their addresses as the same shall then appear in the Register. 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.
59
Section 14.03
Trustee Protected
. Upon the request of the Company, accompanied by the
Officer’s Certificate and Opinion of Counsel required by Section 16.01 stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and evidence reasonably satisfactory to the Trustee of consent
of the Holders if the supplemental indenture is to be executed pursuant to Section 14.02, the Trustee shall join with the Company in the execution of said supplemental indenture unless said supplemental indenture affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in relying upon such
Officer’s Certificate and an Opinion of Counsel.
Section 14.04
Effect of Execution of Supplemental Indenture
. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article XIV, this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of all of the Securities or of the Securities of any series affected, as the case may be, shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Section 14.05
Notation on or Exchange of Securities
. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for the Securities then Outstanding in equal aggregate principal amounts, and such exchange shall be made without cost to the Holders of the Securities.
Section 14.06
Conformity with TIA
. Every supplemental indenture executed pursuant to the provisions of this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
ARTICLE XV
SUBORDINATION OF SECURITIES
Section 15.01
Agreement to Subordinate
. In the event a series of Securities is designated as subordinated pursuant to
Section 3.01, and except as otherwise provided in a Company Order, Officer’s Certificate or in one or more indentures supplemental hereto, the Company, for itself, its successors and assigns, covenants and agrees, and each Holder of
Securities of such series by
60
his, her or its acceptance thereof, likewise covenants and agrees, that the payment of the principal of, premium, if any, or interest on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness. In the event a series of Securities is not designated as subordinated pursuant to Section
3.01(s), this Article XV shall have no effect upon such series of Securities.
Section 15.02
Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of Securities
. Subject to Section 15.01, upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction
to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under the Bankruptcy
Code or any applicable state bankruptcy laws):
(a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of
the principal, premium, if any, or interest thereon before the Holders of the Securities are entitled to receive any payment upon the principal of, premium, if any, or interest on Indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XV in respect of the principal of, premium, if any, or interest, on the Securities shall be paid by the liquidation trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of, premium, if any, or interest on the Senior
Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character in respect
of the principal of, premium, if any, or interest on Indebtedness evidenced by the Securities, whether in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to a Responsible Officer of the Trustee, to the holder of such Senior Indebtedness or his, her or its representative or representatives or to the
trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, as calculated by the Company, for application to payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
61
(d) Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness (to the extent that distributions otherwise payable to such holder have been applied to the payment of Senior Indebtedness) to receive payments or distributions of cash,
property or securities of the Company applicable to Senior Indebtedness until the principal of, premium, if any, or interest on the Securities shall be paid in full and no such payments or distributions to the Holders of the Securities of cash,
property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities be deemed to be a payment by the
Company to or on account of the Securities. It is understood that the provisions of this Article XV are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand. Nothing contained in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of, premium, if any, or interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or in the Securities prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of Section 15.05, shall be
entitled to conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereof and all other facts pertinent thereto or to this Article XV.
Section 15.03
No Payment on Securities in Event of Default on Senior Indebtedness
. Subject to Section 15.01, no payment by
the Company on account of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at anytime if: (i) a default on Senior Indebtedness exists that permits the holders of such Senior Indebtedness to
accelerate its maturity and (ii) the default is the subject of judicial proceedings or the Company has received notice of such default. The Company may resume payments on the Securities when full payment of amounts then due for principal
(premium, if any), sinking funds and interest on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.03, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, but only to the extent that the holders of such Senior Indebtedness (or
their representative or representatives or a
62
trustee) notify the Trustee in writing within 90 calendar days of such payment of the amounts then due and owing on such Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of such Senior Indebtedness.
Section 15.04
Payments on Securities Permitted
. Subject to
Section 15.01, nothing contained in this Indenture or in any of the Securities shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections 15.02 and 15.03, payments
of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application by the Trustee of any moneys or assets deposited with it hereunder to the payment of or on account of the principal of, premium, if any,
or interest on the Securities, unless a Responsible Officer of the Trustee shall have received at its Corporate Trust Office written notice of any fact prohibiting the making of such payment from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such trustee, more than two Business Days prior to the date fixed for such payment.
Section 15.05
Authorization of
Securityholders
to Trustee to Effect Subordination
. Subject to
Section 15.01, each Holder of Securities by his acceptance thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article
XV and appoints the Trustee his
attorney-in-fact
for any and all such purposes.
Section 15.06
Notices to Trustee
. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact
known to the Company that would prohibit the making of any payment of moneys or assets to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Article XV. Subject to Section 15.01, notwithstanding the
provisions of this Article XV or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any fact which would
prohibit the making of any payment of moneys or assets to or by the Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in the case of a Responsible Officer of the Trustee, at
the Corporate Trust Office of the Trustee) written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee, and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects conclusively to presume that no such facts exist;
provided
,
however
, that if at least
two Business Days prior to the date upon which by the terms hereof any such moneys or assets may become payable for any purpose (including, without limitation, the payment of either the principal of, premium, if any, or interest on any Security) a
Responsible Officer of the Trustee shall not have received with respect to such moneys or assets the notice provided for in this Section 15.06, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys or assets and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it within two Business Days prior to such date. The
Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by
a holder of
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Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as
a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 15.07
Trustee as Holder of Senior Indebtedness
. Subject to Section 15.01, the Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder. Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or 11.01.
Section 15.08
Modifications of Terms of Senior Indebtedness
. Subject to Section 15.01, any renewal or extension of the time
of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may
be made or done all without notice to or assent from the Holders of the Securities or the Trustee. No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is Outstanding or of such Senior Indebtedness, whether or not such release is in
accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article XV or of the Securities relating to the subordination thereof.
Section 15.09
Reliance on Judicial Order or Certificate of Liquidating Agent
. Subject to Section 15.01, upon any payment or
distribution of assets of the Company referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
Section 15.10
Satisfaction
and Discharge; Defeasance and Covenant Defeasance
. Subject to Section 15.01, moneys and
Government Obligations deposited in trust with the Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit, prohibited to be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.
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Section 15.11
Trustee Not Fiduciary for Holders of Senior Indebtedness
. With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it shall pay over or
distribute to or on behalf of Holders of Securities or the Company, or any other Person, moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01
Certificates and Opinions as to Conditions Precedent
.
(a) Upon any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 6.05 of this Indenture) shall include
(i) a statement that the Person giving such certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed view or opinion as to whether or
not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
(c) Any certificate, statement 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 or her
certificate, statement or opinion is based are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate, statement 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, statement or opinion
or representations with respect to such matters are erroneous.
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(d) Any certificate, statement or opinion of an officer of the Company or of counsel to the
Company may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which his or her certificate, statement or opinion may be based are erroneous. Any certificate or opinion of any firm of
independent registered public accountants filed with the Trustee shall contain a statement that such firm is independent.
(e) 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.
(f) 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 16.02
Trust Indenture Act Controls
. If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by, or with a provision included in this Indenture which is required to be included in this Indenture by any of the provisions of Sections 310 to 318, inclusive, of, the TIA, such imposed duties or incorporated
provision shall control.
Section 16.03
Notices to the Company and Trustee
. Any notice or demand authorized or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the Company or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be mailed, by regular mail or overnight courier, delivered or faxed
to:
(a) the Company, at 5350 Tech Data Drive, Clearwater, Florida 33760, Attention: Treasurer, with a copy to the General Counsel,
Facsimile No.: (727)
538-7803
or at such other address or facsimile number as may have been furnished in writing to the Trustee by the Company.
(b) the Trustee, at the Corporate Trust Office of the Trustee, Attention: Trust Administrator.
Any such notice, demand or other document shall be in the English language. Anything herein to the contrary notwithstanding, no such notice or
demand shall be effective as to the Trustee unless it is actually received by the Trustee at its Corporate Trust Office.
The Trustee
agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured
e-mail,
pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that
the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be
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amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee
e-mail
or facsimile
instructions (or instructions by a similar electronic method), the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 16.04
Notices to
Securityholders
; Waiver
. Any notice required or permitted to be given to Securityholders
shall be sufficiently given (unless otherwise herein expressly provided) if given in writing by first class mail, postage prepaid, to such Holders at their addresses as the same shall appear on the Register.
(a) In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then
such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
(b)
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance on such waiver. 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, and any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any particular Holder shall not affect the sufficiency of such notice with respect to other Holders, and any notice that is
published in the manner herein provided shall be conclusively presumed to have been duly given.
Section 16.05
Legal Holiday
.
Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment Date, Redemption Date or Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities of that series,
then payment of principal and premium, if any, or interest 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 such
Interest Payment Date, Redemption Date or Maturity and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be, to such Business Day if such payment is made
or duly provided for on such Business Day.
Section 16.06
Effects 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.
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Section 16.07
Successors and Assigns
. All covenants and agreements in this Indenture
by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 16.08
Severability
. If any provision hereof shall be held to be invalid, illegal or unenforceable under applicable law,
then the remaining provisions hereof shall be construed as though such invalid, illegal or unenforceable provision were not contained herein.
Section 16.09
Benefits of Indenture
. Nothing in this Indenture expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or to give to, any Person other than the parties hereto and their successors and the Holders of the Securities any benefit or any right, remedy or claim under or by reason of this
Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the Holders of the Securities.
Section 16.10
Counterparts
. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 16.11
Governing Law; Waiver of Trial by Jury
. This Indenture and the Securities shall be deemed to be contracts made under
the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State (without regard to conflicts of laws principles thereof).
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 16.12
Force Majeure
. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section
16
.13 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the
U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.
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TECH DATA CORPORATION,
as
Issuer
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By:
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/s/ Charles V. Dannewitz
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Name:
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Charles V. Dannewitz
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Title:
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Executive Vice President,
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Chief Financial Officer
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MUFG UNION BANK, N.A.,
as
Trustee
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By:
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/s/ Melonee Young
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Name:
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Melonee Young
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Title:
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Authorized Signatory
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EXHIBIT A
FORM OF SECURITY
FACE OF NOTE
[
For Inclusion in a Global Security only —
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES
REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TECH DATA CORPORATION
% Note Due
PRINCIPAL AMOUNT:
$
CUSIP:
No.:
TECH DATA
CORPORATION, a Florida corporation (the “Company”, which term includes any successor thereto under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to
, or registered assigns, at the office or agency of the Company maintained for such purpose, which shall initially be the
Corporate Trust Office of the Trustee, the principal sum of dollars (or such other principal amount as shall be set forth in the
Schedule of Increases or Decreases in Note attached hereto) on , in the coin or currency of the United States, and to pay
interest, semi-annually on and
of each year, beginning on
, on said principal sum at said office or agency, in like coin or currency, at the rate per annum specified in the title of this
Note, from the or the
, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on this Note, in which case from
, until payment of said principal sum has been made or duly provided for;
provided
that payment of interest may be made at
the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the Register or by wire transfer as provided in the Indenture. The interest so payable on any
or
shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the
or , as
the case may be, next preceding such or
, whether or not such day is a Business Day.
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Reference is made to the further provisions of this Note set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or
become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee under the Indenture referred to on the reverse hereof.
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IN WITNESS WHEREOF, TECH DATA CORPORATION has caused this Note to be duly executed.
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TECH DATA CORPORATION
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date of authentication:
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MUFG UNION BANK, N.A.,
as
Trustee
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By:
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Authorized Signatory
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A-4
REVERSE OF NOTE
TECH DATA CORPORATION
% Note Due
This Note is one
of a duly authorized issue of securities of the Company (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of January 17, 2017 (the
“Indenture”), duly executed and delivered by the Company to MUFG Union Bank, N.A., as Trustee (the “Trustee,” which term includes any successor trustee), to which the Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the % Notes Due
of the Company, limited in aggregate principal amount to
$ ;
provided
,
however
, that the Company, without notice to or consent of the Holders, may issue additional
Securities of this series and thereby increase such principal amount in the future, on the same terms and conditions (except for issue date, public offering price and, if applicable, the date from which interest accrues and the first Interest
Payment Date). Any additional Securities shall be issued under a separate CUSIP number unless: (i) the additional notes and the outstanding notes of the original series are treated as part of the same “issue” of debt instruments for
U.S. Federal income tax purposes, (ii) such additional notes have no more than a de minimis amount of original issue discount for U.S. federal income tax purposes or (ii) such issuance would constitute a “qualified reopening” for
U.S. federal income tax purposes.
Interest shall be computed on the basis of a
360-day
year
consisting of twelve
30-day
months. The Company shall pay interest on overdue principal, premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this
Note. If a payment date is not a Business Day as defined in the Indenture at a Place of Payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.
In case an Event of Default (as defined in the Indenture) with respect to the % Notes Due
shall have occurred and be continuing, the principal hereof and the interest accrued hereon, if any, may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions that provide that the Company and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of amending any provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of such series to be affected with the written consent of the Holders of a majority in principal amount of the
Outstanding Securities of such series affected by such amendment voting separately;
provided
that, without the consent of each Holder of the Securities of each series
A-5
affected thereby, an amendment may not: (i) extend the Stated Maturity of the principal of, or any installment of interest on, such Holder’s Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption thereof, or change the Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or materially adversely affect the economic terms of the Holder’s right to convert or exchange any Security as may be provided in the Indenture; (ii) reduce the percentage in principal
amount of the Outstanding Securities of any series, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of the Indenture or certain
Defaults hereunder and their consequences provided for in the Indenture; (iii) modify any of the provisions of the Indenture governing amendments or waivers with the consent of Holders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or (iv) modify, without the written consent of the Trustee, the rights, duties or immunities
of the Trustee.
It is also provided in the Indenture that, subject to certain conditions and exceptions, the Holders of a majority in
aggregate principal amount of a series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past Default or Event of Default hereunder and its consequences except a Default in the
payment of interest or any premium on or the principal of the Securities of such series or a Default in respect of a covenant or provision of the Indenture that cannot be modified or amended without the consent of the Holder of each Outstanding
Security of such series. Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights under the Indenture, respectively;
provided
that no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note in the manner, at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
The Notes will be issued initially in fully registered form without
coupons in minimum denominations of $2,000 and multiples of $1,000 in excess thereof, and are transferable and exchangeable at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of
the Trustee, and in the manner and subject to the limitations provided in the Indenture.
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[This Note shall not be redeemable at the option of the Company prior to maturity.] [This Note is
redeemable prior to maturity .] [The Redemption Price
is .][This Note is entitled to the benefits of a mandatory sinking fund as
follows: .]
Upon due presentment for
registration of transfer of this Note at the office or agency of the Company maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, a new Note or Notes of authorized denominations for an equal aggregate
principal amount shall be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the Indenture or any indenture supplemental thereto or in any
Note, or because of any indebtedness evidenced thereby, shall be had against any incorporator as such, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor, either directly or through
the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any penalty or otherwise, all such liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
Terms used herein that are defined in the Indenture shall have the respective meanings
assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws principles thereof) shall
govern this Note.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer such Note on the books of the Issuer, with
full power of substitution in the premises.
Signature:
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Dated:
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
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SIGNATURE GUARANTEE
[Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the 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 Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.]
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SCHEDULE OF INCREASES OR DECREASES IN NOTE
*
The initial principal amount of this Note is $ . The following
increases or decreases in a part of this Note have been made:
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Date
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Amount of
decrease in
principal
amount of this
Note
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Amount of
increase in
principal
amount of this
Note
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Principal
amount of this
Note following
such decrease
(or increase)
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Signature of
authorized
signatory of
Trustee
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*
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Insert in Global Notes.
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