Exhibit 1.1
AVANGRID, INC.
$600,000,000 3.150% Notes due 2024
Underwriting Agreement
November 16, 2017
Citigroup Global Markets
Inc.
BBVA Securities Inc.
BNP Paribas Securities Corp.
Wells Fargo Securities, LLC
As Representatives
of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Avangrid, Inc., a
corporation organized under the laws of New York (the “
Company
”), proposes to issue and sell to the several underwriters named in Schedule II hereto (the “
Underwriters
”), for whom you (the
“
Representatives
”) are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the “
Securities
”), to be issued under an indenture dated as of November 21, 2017,
between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”), as supplemented by the first supplemental indenture, dated as of November 21, 2017 (collectively, the “
Indenture
”).
As used in this underwriting agreement (this “
Agreement
”), the “
Registration Statement
” means the
registration statement referred to in paragraph 1(a) hereof, including the exhibits, schedules and financial statements and any prospectus supplement relating to the Securities that is filed with the Securities and Exchange Commission (the
“
SEC
”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “
Securities Act
”) and deemed part of such registration statement pursuant to
Rule 430B under the Securities Act, as amended on the Effective Date (as defined below), and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date (as defined in Section 3 hereof), shall also mean such
registration statement as so amended; the “
Effective Date
” means each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective; the “
Base
Prospectus
” means the base prospectus referred to in paragraph 1(a) hereof contained in the Registration Statement at the date and time that this Agreement is executed and delivered by the parties hereto (the “
Execution
Time
”); a “
Preliminary Prospectus
” means any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) hereof which is used prior to the filing of the Final Prospectus (as defined below),
together with the Base Prospectus; and the “
Final Prospectus
” means the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) under the Securities Act (“
Rule 424(b)
”) after the
Execution Time, together with the Base Prospectus.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3
which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the “
Exchange Act
”) on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference.
As used in this Agreement, the “
Disclosure Package
”
shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) any issuer free writing prospectus, as defined in Rule 433 under the Securities Act (an “
Issuer Free
Writing Prospectus
”), identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto and (v) any other free writing prospectus, as defined in Rule 405 under the Securities Act
(a “
Free Writing Prospectus
”), that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form
S-3
under
the Securities Act and has prepared and filed with the SEC an “automatic shelf registration statement” as defined in Rule 405 under the Securities Act (“
Rule 405
”) (the file number of which is set forth in Schedule I
hereto) on
Form S-3,
including a related Base Prospectus, for the registration of the offering and sale of the Securities under the Securities Act. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the SEC, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), preliminary prospectus supplements relating to the
Securities, each of which has previously been furnished to you. The Company will file with the SEC a final prospectus supplement relating to the Securities in accordance with Rule 424(b) after the Execution Time. As filed, such final prospectus
supplement shall contain all information required by the Securities Act and the rules thereunder and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act. The initial Effective
Date of the Registration Statement was not earlier than the date three years before the Execution Time.
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(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, and the respective rules thereunder, and Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture Act
”); on each Effective Date, at the Execution Time
and on the Closing Date, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form
T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) (i) The Disclosure Package and
(ii) each electronic road show, when taken together as a whole with the
Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time
the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption in Rule 163 under the Securities
3
Act, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the SEC relating to the Securities within the time required by Rule 456(b)(1) and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a
bona fide
offer (within the meaning of Rule 164(h)(2)) under the Securities Act and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the SEC pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(g) Each of the Company and its significant subsidiaries as defined by
Rule 1-02
of Regulation
S-X
and listed on Annex A hereto (“Significant Subsidiaries”) has been duly incorporated and is validly existing as a corporation or other legal entity in good standing under the laws
of the jurisdiction in which it is chartered or organized with full power (corporate or other) and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign corporation or other legal entity and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in
good standing or have such power or authority, would not, in the aggregate (i) reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or
(ii) reasonably be expected to 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 (a “
Material Adverse Effect
”).
(h) All the outstanding shares of
capital stock of the Company or other equity interests of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and
non-assessable,
and, except as otherwise set forth
in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock or other equity interests of the Significant Subsidiaries are owned by the Company either directly or through wholly owned Significant Subsidiaries free and
clear of any perfected security interest or any other security interests, restriction on voting or transfer, claims, liens or encumbrances.
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(i) There is no franchise, contract or other document of a character required to
be described in the Registration Statement
or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the
foregoing matters contained in the Final Prospectus); and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Description of the Notes”, “Description of the Debt Securities” and “Certain
United States Federal Income Tax Considerations” to the extent that they constitute summaries of matters of law or regulation or legal conclusions, fairly summarize the matters described therein in all material respects.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(l) 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, except (i) such as have been obtained or made under the Securities Act, the Trust Indenture Act, (ii) such as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus, and (iii) the failure of which to obtain or make would not reasonably be expected
to have a Material Adverse Effect.
(m) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, (i) the charter,
by-laws
or similar organizational document, as applicable of the Company or any of its Significant 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 Significant Subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their properties, except in the cases at clauses (ii) and (iii) for any such conflict, breach, violation or default that
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(n) Except as disclosed in the Registration Statement, Disclosure Package and
Final Prospectus, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement and the holders of outstanding shares of capital stock of the Company are not entitled to statutory
preemptive or other similar contractual rights to subscribe for the Securities.
(o) The Indenture has been duly authorized
by the Company and assuming due authorization, execution and delivery by the Trustee at the Closing Date, will be duly qualified under the Trust Indenture Act and will have been duly executed and delivered and will constitute a legal, valid and
binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from
time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law),
entitled to the benefits of the Indenture.
(p) The consolidated historical financial statements, including the notes
thereto, and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly 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 summary financial data set forth under the caption “Summary Historical Financial and Operating Information” in the Preliminary Prospectus, the Final Prospectus
and Registration Statement fairly present, on the basis stated in the Preliminary Prospectus, the Final Prospectus and the Registration Statement, the information included therein.
(q) 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 Significant Subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
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(r) Except as disclosed in the Registration Statement, Disclosure Package and
Financial Prospectus, each of the Company and each of its Significant Subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(s) Neither the Company, nor to the knowledge of the Company,
any of its subsidiaries is in violation or default of (i) any provision of its charter,
by-laws
or similar organizational document, (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, or (iii) any statute, law, rule, regulation, judgment, order or decree
of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) (i) Ernst & Young LLP (“
E&Y
”), who has audited the financial statements of the Company for
the year ended December 31, 2016, and has not audited any financial statements of the Company for any period subsequent to December 31, 2016, was an independent registered public accounting firm with respect to the Company as required by
the Securities Act and by the rules and regulations of the Public Company Accounting Oversight Board (“
PCAOB
”); and (ii) KPMG LLP (“
KPMG
”) is an independent registered public accounting firm with respect to the
Company as required by the Securities Act and by the rules and regulations of the PCAOB.
(u) The Company has filed all 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 have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, 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 could not reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(v) No labor problem or dispute with the employees of the Company or
any of its Significant Subsidiaries exists or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its Significant
Subsidiaries’ principal suppliers, contractors or customers, that could have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto).
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(w) No Significant Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other distribution on such Significant Subsidiary’s capital stock or from repaying to the Company any loans or advances to such Significant Subsidiary from the Company,
except as described in or contemplated by the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(x) The Company and its Significant Subsidiaries possess all licenses, certificates, permits and other authorizations issued by
all applicable authorities necessary to conduct their respective businesses, except where the failure to have such licenses, certificates, permits and other authorizations would not, individually or in the aggregate, have a Material Adverse Effect;
and to the knowledge of the Company, the Company and any such Significant Subsidiary have not 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, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(y) Except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto), the Company and its subsidiaries on a consolidated basis maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (v) the interactive data in the eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly present the
information called for and have been prepared in accordance with the SEC’s published rules, regulations and guidelines applicable thereto. Except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto) or otherwise disclosed to the Underwriters, the Company and its subsidiaries on a consolidated basis’ internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any
material weakness in their internal controls over financial reporting.
(z) The Company and its Significant Subsidiaries
maintain “disclosure controls and procedures” (as such term is defined in Rule
13a-15(e)
under the Exchange Act; except as set forth in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto), such disclosure controls and procedures are effective.
(aa) The Company has not
taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
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(bb) The Company and its Significant Subsidiaries are (i) in compliance with
any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental
Laws
”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual
or potential liability under any environmental law, except where such
non-compliance
with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). Except as set forth in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto) , neither the Company nor any of the Significant Subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(cc) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its Significant Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up,
closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(dd) Except as has not had and would not reasonably be expected to result in a Material Adverse Effect or as disclosed in the
Registration Statement, Disclosure Package and Financial Prospectus, none of the following events has occurred or exists: (i) a failure to fulfill the 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 a Plan, determined without regard to any waiver of such obligations or
extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign
regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its Significant Subsidiaries; or (iii) any violation of law governing any Plan. Except as has not had and would not reasonably be
expected to result in a Material Adverse Effect or as disclosed in the Registration Statement, Disclosure Package and Financial Prospectus, none of the following events has occurred or is reasonably likely to occur: (i) a material increase in
the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its Significant Subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the
9
Company and its Significant Subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting
Standards 106) of the Company and its Significant Subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its Significant Subsidiaries; or (iii) any event or condition giving rise to
a liability under Title IV of ERISA. For purposes of this paragraph, the term “
Plan
” means an “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA) with respect to which the Company or any of its Significant Subsidiaries may have any liability.
(ee) There is and has been no failure on the part of the Company and any of the Company’s directors and officers, in their
capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection thereunder (the “
Sarbanes-Oxley Act
”), including Section 402 relating to
loans and Sections 302 and 906 relating to certifications.
(ff) Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries has taken any action, directly or indirectly, that could result in a violation or a sanction
for violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, or similar applicable law of any other relevant jurisdiction, or the rules or regulations thereunder; and the Company and its subsidiaries have instituted and
maintain policies and procedures reasonably designed to ensure compliance with applicable anti-corruption laws. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977,
as amended, or similar applicable law of any other relevant jurisdiction, or the rules or regulations thereunder.
(gg) The
operations of the Company and its 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, and
the applicable anti-money laundering statutes and the applicable rules and regulations thereunder (collectively, the “
Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent or
employee of the Company or any of its Significant Subsidiaries (i) is, or is 50% or more owned by, one or more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any
administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce) or other relevant sanctions authority
(collectively, “
Sanctions
” and such persons, “
Sanctioned Persons
” and each such person, a “
Sanctioned Person
”), (ii) is located, organized or resident in a
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country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (currently, the Crimea region, Cuba, Iran, North
Korea, and Syria) (collectively, “
Sanctioned Countries
” and each, a “
Sanctioned Country
”) or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against any party to this Agreement.
(ii) Neither the Company nor its subsidiaries has engaged in any dealings or transactions with or for the benefit of a
Sanctioned Person, or with or in a Sanctioned Country, in the preceding three years, nor does the Company or any of its subsidiaries have any plans to engage in dealings or transactions with Sanctioned Persons, or with or in a Sanctioned Countries.
(jj) The Significant Subsidiaries listed on Annex A attached hereto are the only significant subsidiaries of the Company
as defined by
Rule 1-02
of Regulation
S-X.
(kk) Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Disclosure Package and the Final Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(ll) The Company shall use the net proceeds received from the sale of the Securities pursuant to this Agreement in the manner
specified in the Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds.”
Any certificate signed by
any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set
forth opposite such Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I hereto or at the time on such later date as the Representatives and the Company may agree upon in writing shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “
Closing Date
”). Delivery of the Securities shall
be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable
in
same-day
funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct by
giving at least three days’ prior written notice.
11
4.
Offering by Underwriters
. It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Company agrees with the
several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives, such approval not to be unreasonably
withheld, with the SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective, (iii) of any request by the SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of
objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company
will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you, such approval not to be unreasonably withheld, and attached as Schedule IV hereto and will file
such term sheet pursuant to Rule 433(d) within the time required by such rule.
12
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b) , any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under
which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act
(including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a
new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will
(i) notify the Representatives of any such event, (ii) prepare and file with the SEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct
such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use
of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act, and such requirement will be fully satisfied by the Company if
the related reports are available on the SEC’s Electronic Data Gathering and Retrieval System.
(f) Upon written
request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
13
(g) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be
obligated to 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 Securities, in any
jurisdiction where it is not now so subject.
(h) During the period from the date hereof and through and including the
Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the printing and delivery of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (ii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iii) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the
Securities; (iv) the registration of the Securities under the Exchange Act; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount that, when combined with the fees and expenses described in Subsection (vi) of this Section, is not greater than
$25,000); (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“
FINRA
”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such
filings in an amount that, when combined with the fees and expenses described in Subsection (v) of this Section, is not greater than $25,000); (vii) the reasonable and documented transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel)
for the Company; (ix) the costs and charges of the
14
Trustee and any transfer agent, registrar or depositary; and (x) all other reasonable costs and expenses incident to the performance by the Company of its obligations hereunder. It is
understood, however, that except as provided this Section, Section 7 and in Section 8, the Underwriters will pay all of their costs and expenses, including fees and disbursements of its counsel.
(k) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the Securities Act (“
Rule
433
”), other than a free writing prospectus containing the information contained in the final term sheet specified in Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “
Permitted Free Writing Prospectus
.”
The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements
of Rule 164 under the Securities Act and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b);
t
he final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by
the Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting
to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The
Representatives shall have received from:
(i) White & Case LLP, counsel for the Company, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; and
15
(ii) Counsel and Assistant Corporate Secretary for the Company, such opinion or
opinions, dated the Closing Date and addressed to the Representatives relating to matters as the Representatives may reasonably require.
(c) The Representatives shall have received Hunton & Williams LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 principal financial or
accounting officer and the treasurer or assistant treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any
amendments or supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, if applicable, 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 at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any 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 in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
16
(e) (i) At the time of execution of this Agreement, the Representatives shall
have received from E&Y a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (1) confirming that they are an independent registered public accounting firm as required by
the Securities Act and by the rules and regulations of the PCAOB, and (2) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is
given in the most recent Preliminary Prospectus, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(ii) At the
time of execution of this Agreement, the Representatives shall have received from KPMG a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (1) confirming that they are an
independent registered public accounting firm as required by the Securities Act and by the rules and regulations of the PCAOB, and (2) stating, as of the date hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG referred to in the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountant, addressed to the Underwriters and dated such Closing Date
(i) confirming that they are an independent registered public accounting firm as required by the Securities Act and by the rules and regulations of the PCAOB, (ii) stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) 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.
(h) 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 for purposes of Rule 3(a)(62) under 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.
17
If any of the conditions specified in this Section 6 shall not have been fulfilled when and
as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Hunton &
Williams LLP, counsel for the Underwriters, at 200 Park Avenue, 52
nd
Floor, New York, New York 10166, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses
. If the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives on demand for all reasonable and documented
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 Securities.
8.
Indemnification and Contribution
.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and
agents of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of 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 any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or
in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any, any Issuer Free Writing Prospectus, any Permitted Free Writing Prospectus, any electronic road
show or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
18
conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists of the information described in Section 8(b) below. 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 who sign the Registration Statement, employees, affiliates, agents and each person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the third sentence
of the last paragraph on the cover page regarding delivery of the Securities and the fourth paragraph, the first sentence of the sixth paragraph and the first, second, third and fifth sentences of the seventh paragraph under the heading
“Underwriting” in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus, any
Issuer Free Writing Prospectus or any Permitted Free Writing Prospectus.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint one counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ one separate counsel (in addition to 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
19
that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, 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),(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “
Losses
”) to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), in no event shall any Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of
the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the
20
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 Section 15 of the Securities Act or Section 20 of the Exchange Act
and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Section 15 of the Securities
Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director, officer, employee, affiliate and agent 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 Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears
to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in
the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
non-defaulting
Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting
Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the
Representatives or the Company shall have the right to postpone the Closing Date for such period, not exceeding five Business Days (as defined below), in order that the required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. As used herein, “
Business Day
” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close in New York. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting
Underwriter for damages
occasioned by its default hereunder.
10.
Termination
. The Representatives may terminate this Agreement by notice given to the
Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the SEC or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
21
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors, employees, agents, affiliates or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications
hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Citigroup Global Markets Inc. at 388 Greenwich Street, New York, New York 10013, Attention: General Counsel,
facsimile number: +1 (646)
291-1469,
BBVA Securities Inc. at 1345 Avenue of the Americas, 44th Floor, New York, New York 10105, Attention: Legal Department, facsimile number: +1 (212)
258-2216,
BNP Paribas Securities Corp. at 787 Seventh Avenue, New York, New York 10019, Attention: Syndicate Desk, facsimile number: +1 (917)
472-4745
or +1 (212)
841-2140
and Wells Fargo Securities, LLC at 550 South Tryon Street, Charlotte, North Carolina 28202, Attention: Transaction Management, facsimile number: +1 (704)
410-0326;
or, if sent to Avangrid, Inc., will be mailed or delivered to One City Center, 5th Floor, Portland, ME, 04101, Attention: Howard Coon, facsimile number: +1 (207)
629-1165.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and
assigns and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14.
Jurisdiction
. The Company and the Underwriters agree that any suit, action or proceeding against the Company brought by any
Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any
State or U.S. federal court in The City of New York and County of New York, and waive any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive
jurisdiction of such courts in any suit, action or proceeding.
15.
No Fiduciary
Duty
. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an
arm’s-length
commercial transaction between the Company, on the one hand,
and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
22
16.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
17.
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.
18.
Waiver of Jury Trial
. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
20.
Headings
. The section headings used herein are for convenience only and
shall not affect the construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
|
|
|
|
|
Very truly yours,
|
|
|
|
AVANGRID, INC.
|
|
|
|
|
By:
|
|
/s/ Richard J. Nicholas
|
|
|
|
Name: Richard J. Nicholas
|
|
|
|
Title: Senior Vice President – Chief Financial Officer
|
|
|
|
|
By:
|
|
/s/ Daniel Alcain
|
|
|
|
Name: Daniel Alcain
|
|
|
|
Title: Senior Vice President - Controller
|
[
Signature Page to
Underwriting Agreement
]
|
|
|
|
|
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I
hereto.
|
|
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
|
|
|
By:
|
|
/s/ Adam D. Bordner
|
|
|
|
Name: Adam D. Bordner
|
|
|
|
Title: Vice President
|
|
|
|
BBVA SECURITIES INC.
|
|
|
|
|
By:
|
|
/s/ James A. Brodt
|
|
|
|
Name: James A. Brodt
|
|
|
|
Title: Executive Director
|
|
|
|
BNP PARIBAS SECURITIES CORP.
|
|
|
|
|
By:
|
|
/s/ Simon Mayes
|
|
|
|
Name: Simon Mayes
|
|
|
|
Title: Managing Director
|
|
|
|
WELLS FARGO SECURITIES, LLC
|
|
|
|
|
By:
|
|
/s/ Carolyn Hurley
|
|
|
|
Name: Carolyn Hurley
|
|
|
|
Title: Director
|
|
|
|
For themselves and the other several
Underwriters named in Schedule II to
the foregoing
Agreement.
|
[
Signature Page to
Underwriting Agreement
]
SCHEDULE I
Underwriting Agreement dated November 16, 2017
Registration Statement
No. 333-221502
Representative(s):
Citigroup Global Markets
Inc.
BBVA Securities Inc.
BNP Paribas Securities Corp.
Wells Fargo Securities, LLC
Title, Purchase
Price and Description of Securities:
Title: 3.150% Notes due 2024
Principal amount: $600,000,000
Purchase price to Underwriters: 99.137%
Redemption provisions:
Make-Whole call at any time prior to October 1, 2024 (the “Par Call Date”) at Treasury Rate +15 basis points (calculated to the
Par Call Date).
Callable on or after the Par Call Date at par.
Closing Date, Time and Location: November 21, 2017 at 10:00 a.m. at Hunton & Williams LLP, 200 Park Avenue, 52
nd
Floor, New York, New York 10166
Type of Offering:
Non-Delayed
I-1
SCHEDULE II
|
|
|
|
|
|
|
Underwriters
|
|
Principal Amount of
Securities to be Purchased
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
120,000,000
|
|
|
BBVA Securities Inc.
|
|
|
120,000,000
|
|
|
BNP Paribas Securities Corp.
|
|
|
120,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
120,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
|
60,000,000
|
|
|
Drexel Hamilton LLC
|
|
|
30,000,000
|
|
|
The Williams Capital Group, L.P.
|
|
|
30,000,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
600,000,000
|
|
|
|
|
|
|
|
II-1
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
1. Free Writing Prospectus dated November 16, 2017
III-1
SCHEDULE IV
[Form of Term Sheet]
Issuer
Free Writing Prospectus
Filed pursuant to Rule 433
Registration Statement
No. 333-221502
November 16, 2017
Avangrid, Inc.
$600,000,000 3.150% Notes Due December 1, 2024
Pricing Term Sheet
|
|
|
|
|
Issuer:
|
|
Avangrid, Inc.
|
|
|
|
|
Issue of Securities:
|
|
3.150% Notes Due 2024
|
|
|
|
|
Type:
|
|
SEC-Registered
|
|
|
|
|
Ratings*:
|
|
[Intentionally omitted in exhibit format]
|
|
|
|
|
Trade Date:
|
|
November 16, 2017
|
|
|
|
|
Settlement Date:
|
|
November 21, 2017 (T+3)
|
|
|
|
|
Principal Amount:
|
|
$600,000,000
|
|
|
|
|
Maturity Date:
|
|
December 1, 2024
|
|
|
|
|
Benchmark Treasury:
|
|
2.250% due October 31, 2024
|
|
|
|
|
Benchmark Treasury Price / Yield:
|
|
100-02+
/ 2.238%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+95 basis points
|
|
|
|
|
Yield to Maturity:
|
|
3.188%
|
|
|
|
|
Coupon:
|
|
3.150%
|
|
|
|
|
Price to Public:
|
|
99.762% of the Principal Amount
|
|
|
|
|
Redemption Provisions:
|
|
Make-whole call at any time prior to October 1, 2024 (the “Par Call Date”) at Treasury Rate +15 basis points (calculated to
the Par Call Date).
Callable on or after the Par Call Date at par.
|
|
|
|
|
Interest Payment Dates:
|
|
Semi-annually on June 1 and December 1, beginning June 1, 2018.
|
|
|
|
|
CUSIP/ISIN:
|
|
05351W AA1 / US05351WAA18
|
|
|
|
|
Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc.
BBVA Securities
Inc.
BNP Paribas Securities Corp.
Wells Fargo Securities,
LLC
Deutsche Bank Securities Inc.
Drexel Hamilton LLC
The
Williams Capital Group, L.P.
|
|
*
|
Security ratings are not recommendations to buy, sell or hold securities. The ratings are subject to change or withdrawal at any time by the respective credit rating agencies.
|
IV-1
The issuer has filed an automatic shelf registration statement (including a prospectus)with the Securities and
Exchange Commission (“SEC”) on November 13, 2017, which became effective upon filing, relating to the offering to which this communication relates. Before you invest, you should read the registration statement, prospectus, preliminary
prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may obtain these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively,
copies of the prospectus and accompanying prospectus supplement, when available, may be obtained from Citigroup Global Markets Inc. toll-free at
1-800-831-9146,
BBVA Securities Inc. toll-free at
1-800-422-8692,
BNP Paribas Securities Corp. toll-free at
1-800-854-5674
or Wells
Fargo Securities, LLC toll-free at
1-800-645-3751.
IV-2
Annex A
Avangrid Networks, Inc.
New York State Electric & Gas
Corporation
Rochester Gas and Electric Corporation
Central
Maine Power Company
UIL Holdings Corporation.
The United
Illuminating Company
Avangrid Renewables Holdings, Inc.
Avangrid Renewables, LLC
Exhibit 4.1
AVANGRID, INC.
as Company
AND
The Bank of New York Mellon
as
Trustee
Indenture
Dated
November 21, 2017
White & Case LLP
1221
Avenue of the Americas
New York, New York 10020-1095
Table of Contents
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Article I Definitions and Incorporation by Reference
|
|
|
1
|
|
|
Section 1.01
|
|
Definitions
|
|
|
1
|
|
|
Section 1.02
|
|
Other Definitions
|
|
|
5
|
|
|
Section 1.03
|
|
Incorporation of Trust Indenture Act by Reference
|
|
|
5
|
|
|
Section 1.04
|
|
Rules of Construction
|
|
|
5
|
|
|
|
|
|
Article II The Securities
|
|
|
6
|
|
|
Section 2.01
|
|
Form and Dating
|
|
|
6
|
|
|
Section 2.02
|
|
Execution and Authentication
|
|
|
6
|
|
|
Section 2.03
|
|
Amount Unlimited; Issuable in Series
|
|
|
7
|
|
|
Section 2.04
|
|
Denomination and Date of Securities; Payments of Interest
|
|
|
9
|
|
|
Section 2.05
|
|
Registrar and Paying Agent; Agents Generally
|
|
|
10
|
|
|
Section 2.06
|
|
Paying Agent to Hold Money in Trust
|
|
|
10
|
|
|
Section 2.07
|
|
Transfer and Exchange
|
|
|
11
|
|
|
Section 2.08
|
|
Replacement Securities
|
|
|
12
|
|
|
Section 2.09
|
|
Outstanding Securities
|
|
|
13
|
|
|
Section 2.10
|
|
Temporary Securities
|
|
|
14
|
|
|
Section 2.11
|
|
Cancellation
|
|
|
14
|
|
|
Section 2.12
|
|
CUSIP Numbers
|
|
|
14
|
|
|
Section 2.13
|
|
Defaulted Interest
|
|
|
14
|
|
|
Section 2.14
|
|
Series May Include Tranches
|
|
|
14
|
|
|
|
|
|
Article III Redemption
|
|
|
15
|
|
|
Section 3.01
|
|
Applicability of Article
|
|
|
15
|
|
|
Section 3.02
|
|
Notice of Redemption; Partial Redemptions
|
|
|
15
|
|
|
Section 3.03
|
|
Payment of Securities Called for Redemption
|
|
|
16
|
|
|
Section 3.04
|
|
Exclusion of Certain Securities from Eligibility for Selection for Redemption
|
|
|
17
|
|
|
Section 3.05
|
|
Mandatory and Optional Sinking Funds
|
|
|
17
|
|
|
|
|
|
Article IV Covenants
|
|
|
17
|
|
|
Section 4.01
|
|
Payment of Securities
|
|
|
17
|
|
|
Section 4.02
|
|
Maintenance of Office or Agency
|
|
|
18
|
|
|
Section 4.03
|
|
Securityholders’ Lists
|
|
|
18
|
|
|
Section 4.04
|
|
Certificate to Trustee
|
|
|
18
|
|
|
|
|
|
Article V Successor Corporation
|
|
|
19
|
|
|
Section 5.01
|
|
When Company May Merge, Etc.
|
|
|
19
|
|
|
Section 5.02
|
|
Successor Substituted
|
|
|
19
|
|
|
|
|
|
Article VI Default and Remedies
|
|
|
19
|
|
|
Section 6.01
|
|
Events of Default
|
|
|
19
|
|
|
Section 6.02
|
|
Acceleration
|
|
|
20
|
|
|
Section 6.03
|
|
Other Remedies
|
|
|
21
|
|
|
Section 6.04
|
|
Waiver of Past Defaults
|
|
|
21
|
|
|
Section 6.05
|
|
Control by Majority
|
|
|
21
|
|
|
Section 6.06
|
|
Limitation on Suits
|
|
|
22
|
|
|
Section 6.07
|
|
Rights of Holders to Receive Payment
|
|
|
22
|
|
|
Section 6.08
|
|
Collection Suit by Trustee
|
|
|
22
|
|
|
Section 6.09
|
|
Trustee May File Proofs of Claim
|
|
|
22
|
|
|
Section 6.10
|
|
Application of Proceeds
|
|
|
23
|
|
(i)
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 6.11
|
|
Restoration of Rights and Remedies
|
|
|
23
|
|
|
Section 6.12
|
|
Undertaking for Costs
|
|
|
23
|
|
|
Section 6.13
|
|
Rights and Remedies Cumulative
|
|
|
23
|
|
|
Section 6.14
|
|
Delay or Omission not Waiver
|
|
|
23
|
|
|
|
|
|
Article VII Trustee
|
|
|
24
|
|
|
Section 7.01
|
|
General
|
|
|
24
|
|
|
Section 7.02
|
|
Certain Rights of Trustee
|
|
|
24
|
|
|
Section 7.03
|
|
Individual Rights of Trustee
|
|
|
25
|
|
|
Section 7.04
|
|
Trustee’s Disclaimer
|
|
|
26
|
|
|
Section 7.05
|
|
Notice of Default
|
|
|
26
|
|
|
Section 7.06
|
|
Reports by Trustee to Holders
|
|
|
26
|
|
|
Section 7.07
|
|
Compensation and Indemnity
|
|
|
26
|
|
|
Section 7.08
|
|
Replacement of Trustee
|
|
|
27
|
|
|
Section 7.09
|
|
Acceptance of Appointment by Successor
|
|
|
28
|
|
|
Section 7.10
|
|
Successor Trustee By Merger, Etc.
|
|
|
28
|
|
|
Section 7.11
|
|
Eligibility
|
|
|
28
|
|
|
Section 7.12
|
|
Money Held in Trust
|
|
|
29
|
|
|
|
|
|
Article VIII Satisfaction and Discharge of Indenture; Unclaimed Moneys
|
|
|
29
|
|
|
Section 8.01
|
|
Satisfaction and Discharge of Indenture
|
|
|
29
|
|
|
Section 8.02
|
|
Application by Trustee of Funds Deposited for Payment of Securities
|
|
|
29
|
|
|
Section 8.03
|
|
Repayment of Moneys Held by Paying Agent
|
|
|
30
|
|
|
Section 8.04
|
|
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
|
|
|
30
|
|
|
Section 8.05
|
|
Defeasance and Discharge of Indenture
|
|
|
30
|
|
|
Section 8.06
|
|
Defeasance of Certain Obligations
|
|
|
31
|
|
|
Section 8.07
|
|
Reinstatement
|
|
|
32
|
|
|
Section 8.08
|
|
Indemnity
|
|
|
32
|
|
|
Section 8.09
|
|
Excess Funds
|
|
|
32
|
|
|
Section 8.10
|
|
Qualifying Trustee
|
|
|
33
|
|
|
|
|
|
Article IX Amendments, Supplements and Waivers
|
|
|
33
|
|
|
Section 9.01
|
|
Without Consent of Holders
|
|
|
33
|
|
|
Section 9.02
|
|
With Consent of Holders
|
|
|
33
|
|
|
Section 9.03
|
|
Revocation and Effect of Consent
|
|
|
34
|
|
|
Section 9.04
|
|
Notation on or Exchange of Securities
|
|
|
35
|
|
|
Section 9.05
|
|
Trustee to Sign Amendments, Etc.
|
|
|
35
|
|
|
Section 9.06
|
|
Conformity with Trust Indenture Act
|
|
|
35
|
|
|
Section 9.07
|
|
Conflict with Trust Indenture Act
|
|
|
35
|
|
|
|
|
|
Article X Miscellaneous
|
|
|
35
|
|
|
Section 10.01
|
|
Trust Indenture Act of 1939
|
|
|
35
|
|
|
Section 10.02
|
|
Notices
|
|
|
35
|
|
|
Section 10.03
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
36
|
|
|
Section 10.04
|
|
Statements Required in Certificate or Opinion
|
|
|
36
|
|
|
Section 10.05
|
|
Forms of Documents Delivered to Trustee
|
|
|
37
|
|
|
Section 10.06
|
|
Evidence of Ownership
|
|
|
37
|
|
|
Section 10.07
|
|
Rules by Trustee, Paying Agent or Registrar
|
|
|
37
|
|
|
Section 10.08
|
|
Payment Date Other Than a Business Day
|
|
|
37
|
|
|
Section 10.09
|
|
Governing Law
|
|
|
37
|
|
(ii)
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 10.10
|
|
No Adverse Interpretation of Other Agreements
|
|
|
37
|
|
|
Section 10.11
|
|
Successors
|
|
|
38
|
|
|
Section 10.12
|
|
Duplicate Originals
|
|
|
38
|
|
|
Section 10.13
|
|
Separability
|
|
|
38
|
|
|
Section 10.14
|
|
Table of Contents, Headings, Etc.
|
|
|
38
|
|
|
Section 10.15
|
|
Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
|
|
|
38
|
|
|
Section 10.16
|
|
Force Majeure
|
|
|
38
|
|
|
Section 10.17
|
|
Waiver of Jury Trial
|
|
|
38
|
|
|
Section 10.18
|
|
Jurisdiction
|
|
|
38
|
|
|
Section 10.19
|
|
Withholding Taxes
|
|
|
38
|
|
(iii)
Indenture
, dated as of November 21, 2017, between Avangrid, Inc., a New York
corporation, as the Company, and The Bank of New York Mellon, a corporation organized under the laws of the State of New York authorized to conduct a banking business, as Trustee.
Recitals of the Company
Whereas
, the Company has duly authorized the issue from time to time of its debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “
Securities
”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and
Whereas
, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
Now, Therefore:
In
consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities
as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
“
Affiliate
” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) when
used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or
otherwise.
“
Agent
” means any Registrar, Paying Agent, transfer agent, Authenticating Agent or any other agent
appointed hereunder.
“
Board Resolution
” means one or more resolutions of the board of directors of the Company or
any authorized committee thereof, certified by the secretary or an assistant secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.
“
Business Day
” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The City of New York, with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar market for dollar deposits, in London,
or with respect to Securities denominated in a specified currency other than United States dollars, in the place of payment established in accordance with Section 2.03(e).
“
Capital Lease
” means, with respect to any Person, any lease of any property which, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
“
Commission
” means the Securities and
Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“
Company
” means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article V of this Indenture and thereafter means the successor.
“
Corporate Trust Office
” means the office of the Trustee at which the corporate trust business of the Trustee shall,
at any particular time, be principally administered, which office is, at the date of this Indenture, located at 101 Barclay Street, 4E New York, New York 10286.
“
Currency Agreement
” means, with respect to any Person, any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in currency values to or under which such Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or
becomes a party or a beneficiary thereafter.
“
Debt
” means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person
in respect of letters of credit or bankers’ acceptance or other similar instruments (or reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred purchase price of property or services, except
Trade Payables, (v) all obligations of such Person as lessee under Capital Leases, (vi) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person;
provided
that, for
purposes of determining the amount of any Debt of the type described in this clause, if recourse with respect to such Debt is limited to such asset, the amount of such Debt shall be limited to the lesser of the fair market value of such asset or the
amount of such Debt, (vii) all Debt of others Guaranteed by such Person to the extent such Debt is Guaranteed by such Person, (viii) all redeemable stock valued at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and (ix) to the extent not otherwise included in this definition, all obligations of such Person under Currency Agreements and Interest Rate Agreements.
“
Default
” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“
Depositary
” means, with respect to the Securities of any series issuable or issued in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to Section 2.03 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 Global Securities of that series.
“
Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
“
GAAP
” means generally accepted accounting principles in the U.S. as in effect as of the date hereof
applied on a basis consistent with the principles, methods, procedures and practices employed in the preparation of the Company’s audited financial statements, including, without limitation, those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as is approved by a significant
segment of the accounting profession.
“
Global Security
” means a Security evidencing all or a part of a
series of Securities, issued to the Depositary or its nominee for such series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
2
“
Guarantee
” means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keepwell, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part);
provided
that the term “
Guarantee
” shall not include endorsements for collection or deposit in the ordinary course of business. The term “
Guarantee
” used as a
verb has a corresponding meaning.
“
Holder
” or “
Securityholder
” means the Person shown in
the Security Register kept by the Registrar as the registered holder of any Security.
“
Indenture
” means
this Indenture as originally executed and delivered or as it may be amended or supplemented from time to time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall
include the forms and terms of the Securities of each series established as contemplated pursuant to Section 2.01 and 2.03.
“
Interest Rate Agreement
” means, with respect to any Person, any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates to or under which such Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“
Lien
” means, with respect to any property, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such property. For purposes of this Indenture, the Company shall be deemed to own subject to a Lien any property which it 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 property.
“
Officer
” means,
with respect to the Company, the chairman of the board of directors, the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary.
“
Officers’ Certificate
” means a certificate signed in the name of the Company (i) by the chairman
of the board of directors, the president or chief executive officer or a vice president and (ii) by the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, and delivered to the
Trustee. Each such certificate shall include (except as otherwise expressly provided in this Indenture) the statements provided in Section 10.04, if applicable.
“
Opinion of Counsel
” means a written opinion signed by legal counsel, who may be an employee of or counsel to the
Company, which is satisfactory in form and substance to the Trustee. Each such opinion shall include the statements provided in Section 10.04, if and to the extent required thereby.
“
Original Issue Discount Security
” means any Security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“
Periodic Offering
” means an offering of Securities of a series from time to time, the specific terms of which
Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
3
“
Person
” means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
Principal
” of a Security means the principal amount of, and, unless the context indicates otherwise, includes any
premium payable on, the Security.
“
Responsible Officer
” when used with respect to the Trustee, shall mean
an officer of the Trustee in the Corporate Trust Office, having direct responsibility for the administration of this Indenture, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.
“
Securities
” means any of the
securities, as defined in the first paragraph of the recitals hereof, that are authenticated and delivered under this Indenture.
“
Subsidiary
” means, with respect to any Person, any corporation, association or other business entity of which a
majority of the capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
“
Trade Payables
” means, with respect to any Person, any accounts payable or any other indebtedness or
monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods or services.
“
Trustee
” means the party named as such in the first paragraph of this Indenture until a successor replaces it in
accordance with the provisions of Article VII and thereafter 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.
“
Trust Indenture Act
” means the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended from time to time.
“
U.S. Government Obligations
” means securities that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (ii) obligations of an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository receipt;
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“
Yield to Maturity
” means, as the context may require, the yield to maturity (i) on a series of Securities or
(ii) if the Securities of a series are issuable from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at the time of issuance of such Security of such series in the
case of clause (ii), or, if applicable, at the most recent redetermination of interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice as is specified in
the terms of such Security.
4
Section 1.02
Other Definitions
. Each of the following terms is defined in the
section set forth opposite such term:
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Term
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Section
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Authenticating Agent
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2.02
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cash transaction
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7.03
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Event of Default
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6.01
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mandatory sinking fund payment
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3.05
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optional sinking fund payment
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3.05
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Paying Agent
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2.05
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record date
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2.04
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Registrar
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2.05
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Security Register
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2.05
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self-liquidating paper
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7.03
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sinking fund payment date
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3.05
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tranche
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2.14
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Section 1.03
Incorporation of Trust Indenture Act by Reference
. Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following terms used in this Indenture that are defined by the Trust Indenture Act have the following meanings:
“
indenture securities
” means the Securities;
“
indenture security holder
” means a Holder or a Securityholder;
“
indenture to be qualified
” means this Indenture;
“
indenture trustee
” or “
institutional trustee
” means the Trustee; and
“
obligor
” on the indenture securities means the Company or any other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.
Section 1.04
Rules of Construction
.
Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural include the singular;
(c) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(d) all references to Sections or Articles refer to Sections or Articles
of this Indenture unless otherwise indicated; and
5
(e) use of masculine, feminine or neuter pronouns should not be deemed a
limitation, and the use of any such pronouns should be construed to include, where appropriate, the other pronouns.
ARTICLE II
THE SECURITIES
Section 2.01
Form and Dating
. The Securities of each series shall be substantially in such form or forms (not inconsistent
with this Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law, or with any
rules of any securities exchange or usage, all as may be determined by the Officers executing such Securities as evidenced by their execution of the Securities.
Section 2.02
Execution and Authentication
. Two Officers shall execute the Securities for the Company by facsimile or manual
signature in the name and on behalf of the Company. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an authenticating agent (the “
Authenticating Agent
”) to
authenticate Securities. The Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such Authenticating Agent.
A Security shall not be valid until the Trustee or Authenticating Agent manually signs the certificate of authentication on the Security by an
authorized signatory. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
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 the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to receive prior to the authentication of
any Securities of such series, and (subject to Article VII) shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which
the forms and terms of the Securities of that series were established;
(b) an Officers’ Certificate stating that the
form or forms and terms of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established in compliance with this Indenture;
and
(c) an Opinion of Counsel substantially to the effect that the form or forms and terms of the Securities of such
series have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established in compliance with this Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if authenticated in accordance with the provisions of
6
the Indenture and delivered to and duly paid for by the purchasers thereof on the date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting creditors’ rights generally,
general principles of equity, and covering such other matters as shall be specified therein and as shall be reasonably requested by the Trustee.
The Trustee shall not be required to authenticate such Securities if the Trustee reasonably determines that the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture in any material respect or may not be lawfully taken.
Notwithstanding the provisions of Sections 2.01 and 2.02, if, in connection with a Periodic Offering, all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the written order of the Company, Officers’ Certificate and Opinion of Counsel otherwise required
pursuant to Section 2.02 at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with
the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series or a portion thereof are to be issued 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 and shall be
denominated in an amount equal to the aggregate Principal amount of all of the Securities of such series issued in such form and not yet cancelled, (ii) shall be registered 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 its custodian or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless
and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.03
Amount Unlimited; Issuable in Series
. The aggregate Principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last sentence of this Section 2.03:
(a) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities
of all other series;
(b) any limit upon the aggregate Principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture and any limitation on the ability of the Company to increase such aggregate Principal amount after the initial issuance of the Securities of that series (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant hereto);
7
(c) the date or dates on which the Principal of the Securities of the series is
payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum
at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(e) if other than
as provided in Section 4.02, the place or places where the Principal of and any interest on Securities of the series shall be payable, any Securities of the series may be surrendered for exchange, and notices, demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(f) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any of 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;
(h) if other than denominations of
$2,000 and integral multiples of $1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the Principal amount thereof, the portion of the Principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in which payment of the Principal of or interest on the Securities of the series shall be payable or if the amount of payments of Principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency or currencies, including composite currencies, in
which payment of the Principal of and interest on the Securities of the series shall be payable, and the manner in which any such currencies shall be valued against other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will be issuable as Global Securities;
(m) whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a
Person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts;
8
(n) if the Securities of the series are to be issuable in definitive, non-global
form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or
conditions;
(o) any trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other
agents with respect to the Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities of the series), which provisions may be in addition to, in substitution for, or in modification of (or any combination of the foregoing) the provisions of Article VIII;
(q) if the Securities of the series are issuable in whole or in part as one or more Global Securities, the identity of the
Depositary or common Depositary for such Global Securities;
(r) any other Events of Default or covenants with respect to
the Securities of the series; and
(s) any other terms of the Securities of the series.
All Securities of any one series shall be substantially identical, except as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.
Unless otherwise expressly provided with respect to a series of Securities, the aggregate Principal amount of a series of Securities may be
increased and additional Securities of such series may be issued up to the maximum aggregate Principal amount authorized with respect to such series as increased.
Section 2.04
Denomination and Date of Securities; Payments of Interest
. The Securities of each series shall be issuable in
denominations established as contemplated by Section 2.03 or, if not so established with respect to Securities of any series, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Company executing the same may determine, as evidenced by their execution thereof.
Unless otherwise specified with respect to a series of Securities, each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.03.
The Person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular
series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and
prior to such interest payment date, except a date for payment of defaulted interest. The term “
record date
” as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the Securities of such series established as contemplated by Section 2.03, or, if no such date is so established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
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Section 2.05
Registrar and Paying Agent; Agents Generally
.
The Company
shall maintain an office or agency where Securities may be presented for registration, registration of transfer or for exchange (the “
Registrar
”) and an office or agency where Securities may be presented for payment (the
“
Paying Agent
”), which shall be in the Borough of Manhattan, The City of New York. The Company shall cause the Registrar to keep a register of the Securities and of their registration, transfer and exchange (the “
Security
Register
”). The Company may have one or more additional Paying Agents or transfer agents with respect to any series.
The Company
shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture and the Trust Indenture Act that relate to such Agent. The Company shall give prompt
written notice to the Trustee of the name and address of any Agent and any change in the name or address of an Agent. If the Company fails to maintain at least one Registrar or Paying Agent in the State of New York, the Trustee shall act as such.
The Company may remove any Agent upon written notice to such Agent and the Trustee and any Agent may resign upon written notice to the Company and the Trustee. The Company or any Affiliate of the Company may act as Paying Agent or Registrar;
provided
that neither the Company nor an Affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the discharge of this Indenture under Article VIII.
The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to each interest payment date and at such other times as the Trustee may reasonably request the names and addresses of the Holders as they appeared in the Security Register
on the record date for such interest payment date.
Section 2.06
Paying Agent to Hold Money in Trust
.
Not later than
10:00 a.m. New York City time on the due date of any Principal or interest on any Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay such Principal or interest. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall (i) hold in trust for the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent for the payment of Principal
of and interest on such Securities, (ii) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (iii) shall promptly notify the Trustee of any default by the Company (or any other obligor upon the
Securities of that series) in timely making any such payment. The Company at any time may, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Paying Agent. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any Affiliate of the Company acts as Paying Agent, it will, in accordance with the times set forth above, segregate and hold in a separate trust fund for the benefit of the Holders thereof a sum of money sufficient to pay
such Principal or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee of its action or failure to act as required by this
Section.
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Section 2.07
Transfer and Exchange
.
At the option of the Holder thereof,
Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a Security or Securities of such series and tenor having authorized denominations and an equal aggregate Principal amount, upon surrender of such
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration of transfer of any Security of a series at the agency of the Company that shall be maintained for that purpose
in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate Principal amount.
All Securities presented for registration of transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any other
provision of this Section 2.07, unless and until it is exchanged in whole or in part for Securities in definitive registered form, 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.
None of the Trustee or any Agent shall: (i) have any duty to monitor compliance with or
with respect to any securities or tax laws (including but not limited to any U.S. federal or state or other securities or tax laws) or (ii) except as specifically provided herein, have any duty to obtain documentation on any transfers or
exchanges of the Securities.
If at any time the Depositary for any Global Securities of any series notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Securities or if at any time the Depositary for such Global Securities shall no longer be eligible under applicable law, the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Global Securities. If a successor Depositary eligible under applicable law for such Global Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication and delivery of definitive non-global Securities of such series and tenor, will authenticate and deliver definitive non-global
Securities of such series and tenor, in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Global Securities, in exchange for such Global Securities.
The Company may at any time and in its sole discretion and subject to the procedures of the Depositary determine that any Global Securities of
any series shall no longer be maintained in global form. In such event the Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication and delivery of definitive non-global Securities of such series and
tenor, will authenticate and deliver, definitive non-global Securities of such series and tenor in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Global Securities, in exchange for such Global
Securities.
11
Any time the Securities of any series are not in the form of Global Securities pursuant to the
preceding two paragraphs, the Company agrees to supply the Trustee with a reasonable supply of definitive non-global Securities without the legend required by Section 2.02 and the Trustee agrees to hold such Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with
respect to any Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for Securities of the same series and tenor in definitive registered form on such terms as are acceptable to
the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge:
(a) to the Person specified by such Depositary new definitive non-global Securities of the same series and tenor, of any
authorized denominations as requested by such Person, in an aggregate Principal amount equal to and in exchange for such Person’s beneficial interest in the 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 definitive non-global Securities authenticated and delivered pursuant to paragraph (a) above.
Definitive non-global Securities issued in exchange for a Global Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depositary for such Global Security shall instruct pursuant to written instructions from its direct or indirect participants to the Trustee. The Trustee shall deliver such Securities to or as directed in
writing by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
The Registrar shall not be required (i) to issue, authenticate, register the transfer of or exchange Securities of any series for a
period of 15 days before a selection of such Securities to be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in whole or in part.
None of the Company, the Trustee nor any Agent will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial interests in any Global Securities or for maintaining, supervising or reviewing any records relating to such beneficial interests.
Section 2.08
Replacement Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security, a new Security of the same series and of like tenor and Principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and Principal amount and bearing a number not
contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee and any agent of them of
the destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any new Security under this Section, the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any
mutilated Security, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.09
Outstanding Securities
.
Securities outstanding at any time are all Securities that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those described in this Section as not outstanding and those that have been
defeased pursuant to Section 8.05.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser.
If the
Paying Agent (other than the Company or an Affiliate of the Company) holds on the maturity date or any redemption date or date for repurchase of the Securities money sufficient to pay Securities payable or to be redeemed or repurchased on that date,
then on and after that date such Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease
to be outstanding because the Company or one of its Affiliates holds such Security,
provided
,
however
, that, in determining whether the Holders of the requisite Principal amount of the outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee has received written notice to be so owned shall be so disregarded. Any
Securities so owned which are pledged by the Company, or by any Affiliate of the Company, as security for loans or other obligations, otherwise than to another such Affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise in its or his discretion the right to vote such securities, uncontrolled by the Company or by any such Affiliate.
13
Section 2.10
Temporary Securities
.
Until definitive Securities of any series
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities of such series. Temporary Securities of any series shall be substantially in the form of definitive Securities of such series but may have
insertions, substitutions, omissions and other variations determined to be appropriate by the Officers executing the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary Securities of any series are
issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities of any series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 4.02, 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 such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.11
Cancellation
.
The Company at any time may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in accordance with its customary procedures all Securities
surrendered for transfer, exchange, payment or cancellation and shall deliver a certificate of disposition to the Company. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for
cancellation.
Section 2.12
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP,”
“ISIN” and/or “CINS” numbers (if then generally in use), and the Trustee shall use CUSIP numbers, ISIN numbers or CINS numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or exchange.
Section 2.13
Defaulted Interest
.
If the Company defaults in a payment of interest on the Securities, it shall
pay, or shall deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.03) to the Persons who are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the Company for the payment of defaulted interest, whether or not such day
is a Business Day. At least 10 days before such special record date, the Company shall mail to each Holder of such Securities and to the Trustee a notice that states the special record date, the payment date and the amount of defaulted interest to
be paid.
Section 2.14
Series May Include Tranches
.
A series of Securities may include one or more
tranches (each a “tranche”) of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including authentication dates and public offering prices, but all
the Securities within each such tranche shall have identical terms, including authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other than the fourth, sixth and
seventh paragraphs thereof), 2.03, 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.07, 9.02 and Section 10.08, if any series of Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally designated a series unless otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of the next preceding sentence, any of the provisions of such sections which provide for or permit action to be taken with respect to a series of Securities shall also be
deemed to provide for and permit such action to be taken instead only with respect to Securities of one or more tranches within that series (and such provisions shall be deemed satisfied thereby), even if no comparable action is taken with respect
to Securities in the remaining tranches of that series.
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ARTICLE III
REDEMPTION
Section 3.01
Applicability of Article
. The provisions of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 3.02
Notice of Redemption; Partial Redemptions
. Notice of redemption to the Holders of Securities of any
series to be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first class mail, postage prepaid or electronic delivery, at least 10 days and not more than 60 days prior to the date
fixed for redemption (except that a redemption notice may be mailed or electronically delivered more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Securities of such series or a satisfaction
and discharge of this Indenture for such series) to such Holders of Securities of such series at their last addresses as they shall appear upon the Security Register. Any redemption notice may, in the Company’s discretion, be subject to the
satisfaction of one or more conditions precedent. If such redemption is subject to the satisfaction of one of more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such
time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), such redemption may not occur and such notice may be rescinded in the event that any or all of such conditions shall not have been satisfied (or
waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed. Any notice which is sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail or electronic delivery, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the Principal amount of
each Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the manner of calculation thereof, the place or
places of payment, that payment will be made upon presentation and surrender of such Securities, and, in the case of Securities with coupons attached thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to, but excluding, the date fixed for redemption will be paid as specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue and that such Securities subject to such redemption shall cease to be outstanding and the Holders thereof shall have no rights with respect thereto other than the right
to receive the redemption price upon presentment and surrender. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the Principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series and tenor in Principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the
Company’s written request made at least five Business Days (or such shorter period as agreed by the Trustee) prior to the date on which notice is to be given, by the Trustee in the name and at the expense of the Company.
15
On or before 10:00 a.m. New York City time on the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to, but excluding, the date fixed for redemption.
If less than all the Securities of a series are to be redeemed, (i) if the Securities are held by a Depositary, the applicable
operational procedures of the Depositary for selection of Securities for redemption will apply and (ii) if the Securities are not held by a Depositary, the Trustee shall select,
pro
rata
, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in Principal amounts equal to authorized denominations for Securities of such series. The Trustee shall promptly notify the
Company and Paying Agent in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the Principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security
which has been or is to be redeemed.
Section 3.03
Payment of Securities Called for Redemption
. Subject to
Section 3.02, if notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding, the date fixed for redemption, and on and after such date (unless the Company shall default in the payment of such Securities or portions thereof at the redemption price, together
with interest accrued to, but excluding, such date) any interest on the Securities or portions of Securities so called for redemption shall cease to accrue, the unmatured coupons, if any, appertaining thereto shall be void and, except as provided in
Sections 7.12 and 8.02, such Securities shall be deemed not to be outstanding and shall cease from and after the date fixed for redemption to be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in respect of
such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all
coupons, if any, appertaining thereto maturing after the dated fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued
thereon to, but excluding, the date fixed for redemption;
provided
that payment of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.04 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such
Security.
Upon presentation and surrender of any Security of any series redeemed in part only, the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series and tenor (with any unmatured coupons attached), of authorized denominations, in Principal amount
equal to the unredeemed portion of the Security so presented.
16
Section 3.04
Exclusion of Certain Securities from Eligibility for Selection for
Redemption
. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized Officer of the Company and delivered to the
Trustee at least 10 days prior to the last date on which notice of redemption may be given as being owned of record or beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an Affiliate of the Company.
Section 3.05
Mandatory and Optional Sinking Funds
. The provisions of this Section shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified in the Officer’s Certificate or indenture supplemental hereto for such Securities. 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 the Securities of any series is herein referred to as an “optional
sinking fund payment.” The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of such Securities or through any optional
sinking fund payment. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities and the amount of such sinking fund payment shall be reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers’ Certificate (a) specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities and (b) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of such series and the basis for such credit. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the Trustee
with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
ARTICLE IV
COVENANTS
Section 4.01
Payment of Securities
. The Company shall pay the Principal of and interest on the Securities on the
dates and in the manner provided in the Securities and this Indenture. The interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to the Holders thereof (subject to
Section 2.04) and at the option of the Company may be paid by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any series to the contrary, if the Company and a Holder of any Security
so agree, payments of interest on, and any portion of the Principal of, such Holder’s Security (other than interest payable at maturity or on any redemption or repayment date or the final payment of Principal on such Security) shall be made by
the Paying Agent,
17
upon receipt from the Company of immediately available funds by 10:00 A.M., New York City time on the payment date (or such other time as may be agreed to between the Company and the Paying
Agent), directly to the Holder of at least $500,000 in aggregate Principal amount of Securities (by Federal funds wire transfer or otherwise) if such Holder has delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment be so made and designating the bank account to which such payments shall be so made and in the case of payments of Principal, surrenders the same to the Trustee in exchange for a Security or Securities aggregating the
same Principal amount as the unredeemed Principal amount of the Securities surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new instruction is delivered 15
days prior to a payment date.
The Company shall pay interest on overdue Principal, and interest on overdue installments of interest, to
the extent lawful, at the rate per annum specified in the Securities.
Section 4.02
Maintenance of Office or Agency
.
The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where Securities may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company hereby initially designates the Corporate Trust Office of the Trustee, located in New York, New York, as such office or agency of the Company. The Company will give
prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 10.02.
The Company may also from time to time designate one or more other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations;
provided
that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 4.03
Securityholders’ Lists
.
The Company will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 5 days after each record date for the payment
of semi-annual interest on the Securities, as hereinabove specified, as of such record date, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Company of any such request as of a date not
more than 15 days prior to the time such information is furnished.
Section 4.04
Certificate to Trustee
.
The Company
will furnish to the Trustee annually, on or before a date not more than four months after the end of its fiscal year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain the statements required by
Section 10.04) from its principal executive, financial or accounting officer as to his or her knowledge of the compliance of the Company with all conditions and covenants under this Indenture (such compliance to be determined without regard to
any period of grace or requirement of notice provided under this Indenture) which certificate shall comply with the requirements of the Trust Indenture Act.
18
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01
When Company May Merge, Etc
. The Company shall not consolidate with, merge with or into, or
sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (in one transaction or a series of related transactions) to, any Person unless either (x) the Company shall be the continuing
Person or (y) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which properties and assets of the Company shall be sold, assigned, conveyed, transferred or leased shall be a
corporation, partnership or limited liability company organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall assume all of the obligations of the Company on all of the Securities and under
this Indenture pursuant to documents in such form as are reasonably satisfactory to the Trustee,
provided
that if the Person is a partnership or limited liability company, then a corporation wholly-owned by such Person organized or existing
under the laws of the United States or any jurisdiction thereof that does not and will not have any material assets or operations shall become a co-issuer of the Securities pursuant to a supplemental indenture duly executed by the Trustee; and
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing.
This
Section 5.01 will not apply to:
(a) a merger of the Company with an Affiliate solely for the purpose of
reincorporating the Company in another jurisdiction or forming a direct holding company of the Company; and
(b) any sale,
transfer, assignment, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries, including by way of merger or consolidation.
Section 5.02
Successor Substituted
. Upon any consolidation or merger, or any sale, assignment, conveyance, transfer,
lease or other disposition of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the successor Person formed by such consolidation or into which the Company is merged or to
which such sale, assignment, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein and thereafter the predecessor Person, except in the case of a lease, shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULT AND
REMEDIES
Section 6.01
Events of Default
. An “
Event of Default
” shall occur with respect to
the Securities of any series if:
(a) the Company defaults in the payment of the Principal of the Securities of such series
when the same becomes due and payable;
(b) the Company defaults in the payment of interest on the Securities of such
series when the same becomes due and payable, and such default continues for a period of 30 days;
(c) the Company defaults
in the performance of or breaches any other covenant or agreement of the Company in this Indenture with respect to the Securities of such series and such default or breach continues for a period of 90 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate Principal amount of the Securities of all series affected thereby specifying such default or breach and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder;
19
(d) a court having jurisdiction in the premises shall enter a decree or order for
relief against the Company in an involuntary case under any applicable bankruptcy law now or hereafter in effect, or appointing a custodian of the Company or for any substantial part of its property or ordering the winding up or liquidation of its
affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the Company
(i) commences a voluntary case under any applicable bankruptcy law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of a custodian of it
or for all or substantially all of the property and assets of the Company or (iii) effects any general assignment for the benefit of creditors; or
(f) any other Event of Default established pursuant to Section 2.03 with respect to the Securities of such series occurs.
Section 6.02
Acceleration
. (a) If an Event of Default other than as described in paragraphs (d) or
(e) of Section 6.01 with respect to the Securities of any series then outstanding occurs and is continuing, then, and in each such case, except for any series of Securities the Principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate Principal amount of the Securities of any such series then outstanding hereunder (each such series treated as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire Principal (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the Principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in paragraph (d) or (e) of Section 6.01 occurs and is continuing, then the Principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of the Principal as may be specified in the terms thereof established pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if
any, shall be and become immediately due and payable, without any notice or other action by any Holder or the Trustee.
The foregoing
provisions, however, are subject to the condition that if, at any time after the Principal (or, if the Securities are Original Issue Discount Securities, such portion of the Principal as may be specified in the terms thereof established pursuant to
Section 2.03) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared or become due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained by
the Trustee as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all overdue installments of interest upon all the Securities of each such series (or of all the Securities, as the case may be) and
the Principal of any and all Securities of each such series (or of all the Securities, as the case may be) which shall have become due otherwise than by such declaration and acceleration (with interest upon such Principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07, and if any and all Events of Default under the Indenture, other than the non-payment of the
Principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a
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majority in aggregate Principal amount of all the then outstanding Securities of all such series that have been accelerated (voting as a single class), by written notice to the Company and to the
Trustee, may waive all defaults with respect to all such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion
of the Principal of any Original Issue Discount Securities shall have been accelerated and declared or become 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 6.03
Other Remedies
. If a payment default or an Event of Default with respect to the
Securities of any series occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of Principal of and interest on the
Securities of such series or to enforce the performance of any provision of the Securities of such series or this Indenture.
The Trustee
may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.
Section 6.04
Waiver of Past Defaults
. Subject to Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in
Principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the Principal as is then accelerable under Section 6.02) of the outstanding Securities of all series affected (voting as a single class), by notice
to the Trustee, may, on behalf of the Holders of all of the Securities of such series, waive an existing Default or Event of Default with respect to the Securities of such series and its consequences, except a Default in the payment of Principal of
or interest on any Security as specified in paragraph (a) or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default with respect to the Securities of such series arising therefrom shall be deemed to have been cured, for every purpose of this Indenture and the
Company, Trustee and Holders restored to their former position and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
Section 6.05
Control by Majority
. Subject to Sections 7.01 and 7.02(e), the Holders of at least a majority in
aggregate Principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the Principal as is then accelerable under Section 6.02) of the outstanding Securities of all series affected (voting as a single class)
may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture;
provided
,
that the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not
joining in the giving of such direction; and
provided
further
, that the Trustee may take any other action it deems proper that is not inconsistent with any directions received from Holders of Securities pursuant to this
Section 6.05.
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Section 6.06
Limitation on Suits
. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, in equity or at law, with respect to this Indenture or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of at least 25% in aggregate Principal amount of outstanding Securities of all
such series affected shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders
of a majority in aggregate Principal amount of the outstanding Securities of all such affected series have not given the Trustee a direction that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07
Rights of Holders to Receive Payment
. Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of Principal of or interest, if any, on such Holder’s Security on or after the respective due dates expressed on such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08
Collection Suit by Trustee
. If an Event of Default with respect to the Securities of any series in payment of Principal or interest specified in paragraph (a) or (b) of Section 6.01 occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount (or such portion thereof as specified in the terms established pursuant to Section 2.03 of Original Issue Discount Securities) of
Principal of, and accrued interest remaining unpaid on, together with interest on overdue Principal specified in such Securities, and such further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07, except
for such amounts arising out of the Trustee’s negligence or bad faith.
Section 6.09
Trustee May File Proofs of
Claim
. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section 7.07) and the
Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or its property and shall be entitled and empowered to collect and receive any moneys, securities or other property payable
or deliverable upon conversion or exchange of the Securities or upon any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it under Section 7.07, except
for such amounts arising out of the Trustee’s negligence or bad faith. Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10
Application of Proceeds
. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of Principal or interest, upon
presentation of the several Securities in respect of which moneys have been collected and noting thereon the payment, or issuing Securities of such series and tenor in reduced Principal amounts in exchange for the presented Securities of such series
and tenor if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07 applicable to the Securities of such series in respect of which moneys have been collected;
SECOND: To Holders of
Securities of the applicable series for amounts due and unpaid on such Securities for Principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities of such series for
Principal and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any other party as a court of
competent jurisdiction shall direct.
Section 6.11
Restoration of Rights and Remedies
. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in every
such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.12
Undertaking for Costs
.
In any suit for
the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect to the Securities of any series, a court may require any party litigant in
such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit having due regard to the merits and good faith of the claims
or defenses made by the party litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by Holders of more than 25% in Principal amount of the outstanding
Securities of such series.
Section 6.13
Rights and Remedies Cumulative
. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14
Delay or Omission not Waiver
. No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Subject to Section 6.06, every right and remedy given by this Article VI or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
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ARTICLE VII
TRUSTEE
Section 7.01
General
. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act
and as set forth herein. Except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in this Indenture and any applicable supplemental indenture and no others, and no implied
covenants or obligations will be read into this Indenture against the Trustee. In case an Event of Default has occurred and is continuing with respect to a series of Securities, the Trustee shall exercise those rights and powers vested in it by this
Indenture and any applicable supplemental indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
unless it receives indemnity satisfactory to it against any loss, liability or expense. 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 Article VII.
Section 7.02
Certain Rights of Trustee
.
Subject to Trust Indenture Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person or persons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;
(b) before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall conform to Section 10.04 and shall cover such other matters as the Trustee may reasonably request. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee;
(c) the Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care;
(d) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the Company;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it in its sole discretion
against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within its rights or powers under this Indenture;
provided
that the Trustee’s conduct does not constitute negligence or bad faith;
(g) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal amount of the Securities of all series affected
then outstanding;
provided
that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding;
(i) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the specimen signatures and
the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture;
(j) in no event shall the Trustee be responsible or liable for special, indirect, consequential or punitive loss or damage of
any kind whatsoever (including, but not limited to, loss of profit); and
(k) delivery of such information, documents or
reports to the Trustee pursuant to this Article 7 is for informational purposes only and the Trustee’s receipt thereof shall not constitute actual or constructive notice of any information contained therein or determinable from information
contained therein, including, in the case of Section 7.02(d), the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
Section 7.03
Individual Rights of Trustee
. The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture
Act Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall mean:
(a) “
cash transaction
” means any transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “
self-liquidating paper
” means any draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien
upon,
25
the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by
the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04
Trustee’s Disclaimer
. The recitals contained herein and in the Securities (except the
Trustee’s certificate of authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same. Neither the Trustee nor any of its agents (a) makes any
representation as to the validity or adequacy of this Indenture, the Securities or any offering materials and (b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05
Notice of Default
. If any Default with respect to the Securities of any series occurs and is continuing
and if such Default is known to the actual knowledge of a Responsible Officer with the Corporate Trust Office of the Trustee, the Trustee shall give to each Holder of Securities of such series notice of such Default within 120 days after it occurs
to all Holders of Securities of such series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been cured or waived before the mailing of such notice;
provided
,
however
, that, except in the case of a Default in the payment of the Principal of or interest on any Security, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
Section 7.06
Reports by Trustee to Holders
. The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within 60 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).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee in writing when any Securities are listed on any stock exchange.
Section 7.07
Compensation and Indemnity
. The Company shall pay to the Trustee such compensation as shall be agreed
upon in writing from time to time for its services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, except for any such expense, disbursement or advance as may arise from its negligence or bad faith. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents and counsel.
Subject to the satisfaction of the Trustee in its sole discretion, the Company shall
indemnify the Trustee for, and hold it harmless against, any loss, liability, damage, claim or expense incurred by it without negligence, bad faith or willful misconduct on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the Securities or any series or tranches thereof or the trusts hereunder and the performance of duties or the exercise of its rights under this Indenture and the Securities;
provided
that the Company need not pay for any settlement made without its consent.
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To secure the Company’s payment obligations in this Section 7.07, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay Principal of, and interest on particular Securities.
The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture or the rejection or termination of this Indenture
under bankruptcy law and/or the resignation or removal of the Trustee and/or the payment of Securities. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim. Without prejudice to any other rights available to the Trustee under applicable law, if the
Trustee renders services and incurs expenses following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto and the holders by their acceptance of the Securities hereby agree that such expenses are
intended to constitute expenses of administration under any bankruptcy law.
Section 7.08
Replacement of Trustee
. A
resignation or removal of the Trustee as Trustee with respect to the Securities of any series and appointment of a successor Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing no less than 30 days in advance. The Holders of a majority in Principal amount of the outstanding Securities of any series may remove the Trustee as Trustee with respect to
the Securities of such series by so notifying the Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee as Trustee with respect to the Securities of any
series, upon 30 days’ written notice, if: (i) the Trustee is no longer eligible under Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public officer takes
charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as
Trustee with respect to the Securities of any series, or if a vacancy exists in the office of Trustee with respect to the Securities of any series for any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within
one year after the successor Trustee takes office, the Holders of a majority in Principal amount of the outstanding Securities of such series may appoint a successor Trustee in respect of such Securities to replace the successor Trustee appointed by
the Company. If the successor Trustee with respect to the Securities of any series does not deliver its written acceptance required by Section 7.09 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in Principal amount of the outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect thereto.
The Company shall give notice of any resignation and any removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series to all Holders of Securities of such series. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the Securities of any series pursuant to this Section 7.08 and
Section 7.09, the Company’s obligations under Section 7.07 shall survive and continue for the benefit of the retiring Trustee.
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Section 7.09
Acceptance of Appointment by Successor
.
In case of the
appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and subject to the lien provided for in Section 7.07, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this
Article and qualified under Section 310(b) of the Trust Indenture Act.
Section 7.10
Successor Trustee By Merger,
Etc
. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation or national banking association, the resulting,
surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein.
Section 7.11
Eligibility
.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
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Section 7.12
Money Held in Trust
. The Trustee shall not be liable for the
investment of or the payment of any interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and
except for money held in trust under Article VIII of this Indenture.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 8.01 Satisfaction and Discharge of Indenture
.
If at any time (a) the Company shall have paid or caused to be
paid the Principal of and interest on all the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08) as
and when the same shall have become due and payable, or (b) the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) or (c) (i) all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any Paying Agent to the Company in accordance with Section 8.04) or U.S. Government
Obligations, maturing as to Principal and interest in such amounts and at such times as will insure (without consideration of the reinvestment of such interest) the availability of cash, or a combination thereof, sufficient to pay at maturity or
upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) not theretofore delivered to the
Trustee for cancellation, including Principal and interest due or to become due on or prior to such date of maturity or redemption as the case may be, and if, in any such case, the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange of
securities of such series, and the Company’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders to receive payments of Principal thereof and
interest thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, protections, indemnities and
immunities of the Trustee and each Agent hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on
written demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with
respect to such series;
provided
, that the rights of Holders of the Securities to receive amounts in respect of Principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 8.02
Application by Trustee of Funds Deposited for Payment of Securities
. Subject to Section 8.04, all moneys
(including U.S. Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be held in trust and applied by it to the payment, either directly or through any
Paying Agent to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for Principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
29
Section 8.03
Repayment of Moneys Held by Paying Agent
. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such series of Securities shall, upon written demand of the
Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
Section 8.04
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
. Any moneys deposited with or paid
to the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the Principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such Principal or
interest shall have become due and payable, shall, upon the written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee
for such series or such Paying Agent, or (if then held by the Company) shall be discharged from such trust; and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter, as an unsecured general creditor, look only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such moneys, and all
liability of the Company as trustee thereof (if applicable), shall thereupon cease.
Section 8.05
Defeasance and Discharge of
Indenture
. The Company shall be deemed to have paid and shall be discharged from any and all obligations in respect of the Securities of any series, on the date the conditions set forth below are satisfied, and the provisions of this
Indenture shall no longer be in effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except as to: (a) rights of registration of transfer
and exchange, and the Company’s right of optional redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities, (c) rights of Holders to receive payments of Principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon acceleration), (d) the rights, obligations and immunities of the Trustee hereunder and (e) the rights of the Security holders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them;
provided
that the following conditions shall have been satisfied:
(a) with reference to this provision the Company has deposited or caused to be irrevocably deposited with the Trustee (or
another qualifying trustee satisfying the requirements of Section 7.11) 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, (A) money in an
amount, or (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in subclause
(x) or (y) of this clause (i) money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the Principal
of, premium, if any, and each installment of interest on the outstanding Securities of such series on the due dates thereof and (y) any mandatory sinking fund payments or analogous payments applicable to the Securities of such series on the day
on which such payments are due and payable in accordance with the terms of Securities of such series and the Indenture with respect to the Securities of such series;
30
(b) the Company has delivered to the Trustee either (x) an Opinion of
Counsel to the effect that Holders of Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.05 and will be subject to
federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be based upon a ruling of the Internal Revenue
Service to the same effect or a change in applicable federal income tax law or related treasury regulations after the date of this Indenture or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect
as the aforementioned Opinion of Counsel;
(c) no Event of Default, or event that after the giving of notice or lapse of
time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit), and such deposit shall not result
in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(d) if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge under this Section have been complied with; and
(f) if the
Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made.
Section 8.06
Defeasance of Certain Obligations
. The Company
may, at any time, omit to comply with and shall have no liability in respect of any term, provision or condition set forth in, and this Indenture will no longer be in effect with respect to, any covenant established pursuant to Section 2.03(r)
and paragraph (c) (with respect to any covenants established pursuant to Section 2.03(r)) and paragraph (f) of Section 6.01 shall be deemed not to be an Event of Default, if:
(a) with reference to this Section 8.06, the Company has deposited or caused to be irrevocably deposited with the Trustee
(or another qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and the Indenture
with respect to the Securities of such series, (i) money in an amount or (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one
day before the due dates thereof or earlier redemption (irrevocably provided for under agreements satisfactory to the Trustee), as the case may be, of any payment referred to in subclause (x) or (y) of this clause (a) money in an
amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge without
consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the Principal of, premium, if any, and each installment of
interest on the outstanding Securities on the due date thereof or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be, and (y) any mandatory sinking fund
31
payments or analogous payments applicable to the Securities of such series and the Indenture with respect to the Securities of such series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of Securities of such series and the Indenture with respect to the Securities of such series;
(b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders of Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.06 and will be subject to federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had not occurred;
(c) no Event of Default, or event
that after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such
deposit), and such deposit shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(d) if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge; and
(e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under this Section have been complied with.
Section 8.07
Reinstatement
.
If
the Trustee or Paying Agent is unable to apply any monies or U.S. Government Obligations in accordance with Article VIII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee
or Paying Agent is permitted to apply all such monies or U.S. Government Obligations in accordance with Article VIII;
provided
,
however
, that if the Company has made any payment of Principal of or interest on any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the monies or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.08
Indemnity
.
The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.08 and Section 8.02, the “
Trustee
”) against any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 8.01, 8.05 or 8.06
or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Securities.
Section 8.09
Excess Funds
. Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon written request of the Company, any money or U.S. Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a discharge or defeasance,
as applicable, in accordance with this Article VIII.
32
Section 8.10
Qualifying Trustee
.
Any trustee appointed pursuant to
Section 8.05 or 8.06 (other than the Trustee) for the purpose of holding money or U.S. Government Obligations deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the
Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related defeasance have been complied with. In no event shall the Trustee be liable for any
acts or omissions of said trustee
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01
Without Consent of Holders
.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of any series without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or
inconsistency in this Indenture;
provided
that such amendments or supplements shall not materially adversely affect the interests of the Holders;
(b) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(c) to comply with Article V;
(d) to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust
Indenture Act;
(e) to evidence and provide for the acceptance of appointment hereunder with respect to the Securities of
any or all series by a successor Trustee and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.09;
(f) to conform the text of the Indenture or the Securities of any series to any
provision of a description of such Securities in the prospectus or prospectus supplement or other document relating to the offering of such Securities to the extent that such provision was intended to be a verbatim or substantially verbatim
recitation of a provision of the Indenture or the Securities of such series;
(g) to establish the form or forms or terms
of Securities of any series as permitted by Section 2.03;
(h) to make any change that would provide any additional
rights or benefits to the Holders of Securities of such series or that does not materially adversely affect the legal rights under the Indenture of any such Holder; and
(i) to provide for the issuance of additional Securities in accordance with the limitations set forth in the Indenture.
Section 9.02
With Consent of Holders
. Subject to Sections 6.04 and 6.07, without prior notice to any Holders, the Company
and the Trustee may amend this Indenture and the Securities of any series with the written consent of the Holders of a majority in Principal amount of the outstanding Securities of all series affected by such amendment (considered together as one
class for this purpose), and the Holders of a majority in principal amount of the outstanding Securities of all series affected thereby (considered together as one class for this purpose) by written notice to the Trustee may waive future compliance
by the Company with any provision of this Indenture or the Securities of such series (including, without limitation, consents obtained in connection with a purchase of, or exchange offer for, Securities).
33
Notwithstanding the provisions of this Section 9.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:
(a) change the stated
maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s Security,
(b) reduce the Principal amount thereof, premium, if any, or the rate of interest thereon (including any amount in respect of
original issue discount); and
(c) reduce the above stated percentage of outstanding Securities the consent of whose
Holders is necessary to modify or amend the Indenture with respect to the Securities of the relevant series or waive compliance with certain provisions of this Indenture or certain Defaults with respect to such series.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for the consent of any Holder under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request. 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 or waiver.
Section 9.03
Revocation and Effect of
Consent
.
Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective with respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to,
fix a record date (which may be not less than five nor more than 60 days prior to the solicitation of consents) for the purpose of determining the Holders of the Securities of any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately preceding paragraph, those Persons who were such Holders at such record date (or their duly designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be such Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
34
After an amendment, supplement or waiver becomes effective with respect to the Securities of any
series affected thereby, it shall bind every Holder of such Securities unless it is of the type described in any of paragraphs (a) through (c) of Section 9.02. In case of an amendment or waiver of the type described in paragraphs
(a) through (c) of Section 9.02, the amendment or waiver shall bind each such Holder who has consented to it and every subsequent Holder of a Security that evidences the same indebtedness as the Security of the consenting Holder.
Section 9.04
Notation on or Exchange of Securities
. If an amendment, supplement or waiver changes the terms of any
Security, the Trustee may require the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security of the same series and tenor
that reflects the changed terms.
Section 9.05
Trustee to Sign Amendments, Etc
.
The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are required and stating that such supplemental indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.06
Conformity with Trust Indenture Act
. Every supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.07
Conflict with Trust Indenture
Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
ARTICLE X
MISCELLANEOUS
Section 10.01
Trust Indenture Act of 1939
. This Indenture shall incorporate and be governed by the provisions
of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 10.02
Notices
. Any notice or communication shall be given in writing and delivered (a) in person, (b) by
first class mail or (c) by overnight courier, in each case addressed as follows:
if to the Company:
Avangrid, Inc.
One City Center,
5th Floor
Portland, ME, 04101
Attention: Howard Coon
35
if to the Trustee:
The Bank of New York Mellon
500
Ross Street, 12
th
Floor
Pittsburgh, Pennsylvania 15262
The Company or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or
communications. Notice and communications to the Trustee and the Company shall be deemed sufficiently given upon actual receipt thereof;
provided
that notices and communications delivered by facsimile transmission shall be deemed sufficiently
given only upon receipt by the delivering party of written confirmation of such actual receipt.
Any notice or communication shall be
sufficiently given to Holders of Securities by mailing to such Holders at their addresses as they shall appear on the Security Register or otherwise delivered in accordance with the appropriate procedures of the depository. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication to a Holder is given in the manner provided in this Section 10.02, it is duly given, whether or not the Holder receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 10.03
Certificate and Opinion as to Conditions Precedent
. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.04
Statements Required in
Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificate required by Section 4.04) shall include:
(a) a statement that each Person signing such certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which
the statement or opinion contained in such certificate or opinion is based;
36
(c) a statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with;
provided
,
however
, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 10.05
Forms of Documents Delivered to Trustee
. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer or counsel 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 or opinion
is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company.
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 10.06
Evidence of Ownership
. The Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the person in whose name any Security shall be registered upon the Security Register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the Principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary.
Section 10.07
Rules by Trustee, Paying Agent or
Registrar
. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
Section 10.08
Payment Date Other Than a Business Day
. Except as otherwise provided with respect to a series of Securities,
if any date for payment of Principal or interest on any Security shall not be a Business Day at any place of payment, then payment of Principal of or interest on such Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force and effect as if made on such date and no interest shall accrue in respect of such payment for the period from and after such date.
Section 10.09
Governing Law
. The laws of the State of New York shall govern this Indenture and the Securities, without
giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
Section 10.10
No Adverse Interpretation of Other Agreements
. This Indenture may not be used to interpret another indenture
or loan or debt agreement of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this Indenture.
37
Section 10.11
Successors
. All agreements of the Company in this Indenture and
the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 10.12
Duplicate Originals
. The parties may sign any number of copies of this Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
Section 10.13
Separability
. In case any provision
in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14
Table of Contents, Headings, Etc
. The Table of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
Section 10.15
Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any
past, present or future stockholder, officer, director or employee, 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 legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of
the Securities.
Section 10.16
Force Majeure
. In no event shall the Trustee be responsible or liable, nor shall the
Company be responsible or liable to the Trustee, for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, natural catastrophes, riot,
loss or malfunctions of utilities, or government action; it being understood that the Trustee or the Company, as the case may be, shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable
under the circumstances.
Section 10.17
Waiver of Jury Trial
. EACH OF THE COMPANY, THE HOLDERS (BY PURCHASE OF THEIR
SECURITIES AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION
CONCEMPLATED HEREBY.
Section 10.18
Jurisdiction
. The Company agrees that any suit, action, or proceeding against the
Company brought by any holder of Securities or the Trustee arising out of or based upon this Indenture or the Securities may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from
any thereof, and the Company irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action or
proceeding that may be brought in connection with this Indenture, or any Security, including such actions, suits, or proceedings in relation to the securities laws of the United States of America or any state thereof, in such courts whether on the
grounds of venue, residence or domicile or on the ground that any such suit, action, or proceeding has been brought in an inconvenient forum. The Company agrees that final judgment in any such suit, action, or proceeding brought in such court shall
be conclusive or binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject by suit upon such judgment.
Section 10.19
Withholding Taxes
. The Trustee or Paying Agent, as applicable, shall be entitled to make any withholding or
deduction from payments under this Indenture to the extent necessary to comply with the withholding requirements described in Section 1471(b) of the Internal Revenue Code of 1986, as amended (the “
Code
”), or otherwise imposed
pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof.
38
SIGNATURES
IN WITNESS WHEREOF
, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
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AVANGRID, INC.
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as the Company
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By:
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/s/ Richard J. Nicholas
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Name: Richard J. Nicholas
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Title: Senior Vice President – Chief Financial Officer
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By:
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/s/ Daniel Alcain
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Name: Daniel Alcain
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Title: Senior Vice President - Controller
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THE BANK OF NEW YORK MELLON
as the Trustee
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By:
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/s/ Efren Almazan
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Name: Efren Almazan
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Title: Vice President
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Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “
Supplemental Indenture
”), dated as of November 21, 2017, between Avangrid, Inc., a
New York corporation (the “
Company
”), and The Bank of New York Mellon, a corporation organized under the laws of the State of New York authorized to conduct a banking business, as Trustee (the “
Trustee
”).
RECITALS
WHEREAS, in
accordance with Sections 2.01, 2.03 and 9.01(g) of the Indenture, dated as of November 21, 2017, between the Company and the Trustee (the “
Indenture
”), this Supplemental Indenture is being entered into in order to establish the
form and terms of a new series of securities;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Notes (as defined below) by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Notes as follows:
ARTICLE
I
DEFINITIONS
All capitalized terms used herein without definition shall have the meanings specified in the Indenture. For all purposes of this Supplemental
Indenture, the terms defined in this Article I have the meanings set forth below:
“
Business Day
” means any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York.
“
Capital Lease Obligations
” means as to any Person, the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for
the purposes of this Supplemental Indenture, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“
Capital Stock
” means any and all shares, interests, participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the Quotation Agent as having an actual or
interpolated maturity comparable to the remaining term of the Notes to be redeemed (assuming, for this purpose, that the Notes matured on the Par Call Date) 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 a comparable maturity to the remaining term of the Notes.
“
Comparable Treasury Price
” means, with respect to any redemption date,
(a) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (b) if the Quotation Agent obtains fewer than four of such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
“
First Mortgage Bond
Indentures
” means (i) the Indenture of Mortgage, dated as of May 1, 2009, from Central Maine Power Company to The Bank of New York Mellon Trust Company, N.A., as trustee (as supplemented and amended), (ii) the Indenture, dated as
of September 1, 1918, from Rochester Gas and Electric Corporation to Bankers Trust Company (as supplemented and amended), (iii) the Indenture between The Southern Connecticut Gas Company (formerly, The Bridgeport Gas Light Company) and The
Bridgeport City Trust Company, as trustee, dated as of March 1, 1948 (as supplemented and amended) and (iv) the First Mortgage Indenture and Deed of Trust, dated as of July 1, 1954, from The Berkshire Gas Company (formerly, Pittsfield
Coal Gas Company) to Chemical Bank & Trust Company, as trustee.
“
Guarantee Obligation
” means, as to any Person
(the “
guaranteeing person
”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “
primary obligations
”) of any other third Person (the
“
primary obligor
”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof;
provided
,
however
, that the term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated
liability in respect thereof as determined by the Company in good faith.
2
“
Indebtedness
” means of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue more than 60 days incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all liabilities of such Person as an account party under acceptances, letters of credit (other than trade letters of credit), surety bonds or similar arrangements, (g) the liquidation value of all preferred Capital Stock of
such Person that is redeemable at the option of the holder thereof or that has any mandatory dividend, redemption or other required payment that could be required thereunder prior to the date that is one year after the stated maturity date of the
Notes set forth in Section 2.02 herein, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, and (i) all obligations of the kind referred to in clauses
(a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. Indebtedness
shall not include Indebtedness of the Company or any of its Significant Subsidiaries arising from the application of Financial Interpretation Number 45 of the Financial Accounting Standards Board, Financial Interpretation Number 46 of the Financial
Accounting Standards Board or Issue
No. 01-08
of the Emerging Issues Task Force.
“
Lien
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
“
Person
” means any natural person, corporation,
business trust, joint venture, association, company, partnership or government, or any agency or political subdivision thereof.
“
Principal Property
” means any building, structure or other facility (together with the land on which it is erected and
fixtures comprising a part thereof) owned by the Company or any Significant Subsidiary and used primarily for generation, transmission, distribution, design, development or construction, in each case located within the United States, that has a book
value on the date of which the determination is being made, without deduction of any depreciation reserves, exceeding 2% of Total Assets, other than any such facility (or portion thereof) that the Company reasonably determines is not material to the
business of the Company and its subsidiaries, taken as a whole.
“
Quotation Agent
” means one of the Reference Treasury
Dealers selected by the Company, or if any such firm is unwilling or unable to serve as such, an independent investment and banking institution of national standing appointed by the Company.
3
“
Reference Treasury Dealer
” means each of BNP Paribas Securities Corp.,
Citigroup Global Markets Inc., Wells Fargo Securities, LLC and a Primary Treasury Dealer selected by BBVA Securities Inc., or their respective affiliates or successors, each of which is a primary U.S. Government securities dealer in the United
States (a “
Primary Treasury Dealer
”) and one other nationally recognized investment banking firm that is a Primary Treasury Dealer specified from time to time by the Company, except that if any of the foregoing ceases to be a
Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
“
Reference Treasury Dealer
Quotations
” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.
“
Significant Subsidiary
” means a significant subsidiary of the Company as defined by Rule
1-02
of Regulation
S-X
under the Securities Exchange Act of 1934, as amended.
“
Total Assets
” means, as of any date of determination, the total consolidated assets of the Company and its subsidiaries,
determined in accordance with GAAP, as shown on the most recent internally available balance sheet of the Company, after giving pro forma effect to any acquisition or disposal of any property or assets consummated after the date of the applicable
balance sheet and on or prior to the date of determination.
“
Treasury Rate
” means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption date.
ARTICLE II
THE NOTES
Section 2.01.
Issuance of Notes
. There shall be a series of debt securities designated “3.150% Notes due 2024” (the
“
Notes
”). The Notes shall be initially limited to $600,000,000 aggregate principal amount except as provided in Section 2.09 hereof.
Section 2.02.
Principal Payment
. Except as otherwise provided in Section 2.06 hereof, the principal amount of the Notes shall
be payable on the stated maturity date of December 1, 2024.
Section 2.03.
Interest Rates and Payment Dates
. The Notes
shall be dated their date of authentication as provided in the Indenture and shall bear interest from their date at the rate of 3.150% per annum, payable semiannually in arrears on June 1 and December 1 of each year, commencing
June 1, 2018. The record dates with respect to such June 1 and December 1 interest payment dates shall be May 15 and November 15 (whether or not a Business Day), respectively. Interest shall be computed on the basis of a
360-day
year of twelve
30-day
months.
4
Section 2.04.
Payment Dates Generally
. If any interest payment date, date of
redemption or the maturity date of any of the Notes is not a Business Day, then payment of principal and interest shall be made on the next succeeding Business Day. No interest shall accrue on the amount so payable for the period from that interest
payment date, redemption date or maturity date, as the case may be, to the date payment is made.
Section 2.05.
Currency
.
Payment of principal and interest on the Notes shall be made in U.S. Dollars.
Section 2.06.
Optional Redemption
. At any time
and from time to time prior to October 1, 2024 (the “Par Call Date”), the Company may, at its option, redeem all or any portion of the Notes, on not less than 10 nor more than 60 days’ prior notice mailed to the Holders of the
Notes to be redeemed in accordance with Section 3.02 of the Indenture, at a redemption price equal to the greater of (a) 100% of the principal amount of the Notes to be redeemed and (b) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Notes matured on the Par Call Date (exclusive of interest accrued to the redemption date), discounted to the redemption date on a semi-annual basis
(assuming a
360-day
year consisting of twelve
30-day
months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest on the principal
amount of the Notes to be redeemed to, but excluding, such redemption date.
At any time and from time to time on or after the Par Call
Date, the Company may, at its option, redeem all or any portion of the Notes, on not less than 10 nor more than 60 days’ prior notice mailed to the Holders of the Notes to be redeemed in accordance with Section 3.02 of the Indenture, at a
redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest on the principal amount of the Notes to be redeemed to, but excluding, such redemption date. The Trustee shall have no obligation to
calculate the redemption price of any Notes to be redeemed pursuant to this Supplemental Indenture.
Section 2.07.
Sinking
Fund
. The Notes shall not be subject to any sinking fund.
Section 2.08.
Covenants
. In addition to the covenants set forth
in the Indenture, the Company covenants that so long as any of the Notes are outstanding:
(a) The Company shall not and shall not permit
any of its Significant Subsidiaries to create, assume, incur or suffer to exist any Lien upon or with respect to any Principal Properties, whether now owned or hereafter acquired, without making effective provision whereby the Notes shall be secured
by such Lien equally and ratably with or prior to any and all Indebtedness and other obligations to be secured thereby,
provided
that nothing in this Section 2.08(a) shall prohibit:
(i) Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Company or the applicable Significant Subsidiary, in conformity with GAAP;
(ii) Carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like liens arising in
the ordinary course of business that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings;
5
(iii) Pledges or deposits in connection with workers’ compensation,
unemployment insurance and other social security legislation;
(iv) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(v) Easements,
rights-of-way,
restrictions and
other similar encumbrances incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of
the Company or any of its Significant Subsidiaries;
(vi) Liens in respect of property of the Company or any of its
subsidiaries existing on the date hereof;
(vii) Liens in respect of property acquired or constructed by the Company or any
of its subsidiaries after the date hereof, which are created at the time of or within 120 days after acquisition or completion of construction of that property to secure Indebtedness assumed or incurred to finance all or any part of the purchase
price or cost of construction of that property, provided that in that case (a) none of those liens extend to or cover any other property of the Company or any of its subsidiaries, as the case may be, and (b) the aggregate principal amount
of Indebtedness secured by all of those liens in respect of that property does not exceed the cost of that property and any improvements then being financed;
(viii) Liens securing Indebtedness owed by a subsidiary of the Company to the Company or any of its subsidiaries;
(ix) Extensions, renewals or replacements of any Liens permitted hereunder (including successive extensions, renewals and
replacements), provided that with respect to Indebtedness in excess of $250,000,000, the principal amount of Indebtedness (or the maximum commitment therefor) secured by that Lien is not increased and that Lien does not extend to or cover any
property other than the property covered by that Lien on the date of that extension, renewal or replacement;
(x) Any
interest or title of a lessor under any lease entered into in the ordinary course of business and covering only the assets so leased;
(xi) Liens existing upon any property acquired by the Company or any of its subsidiaries in the ordinary course of business;
provided that (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien shall not apply to any other property or assets and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
6
(xii) Liens arising in connection with sales or transfers of, or financings
secured by, accounts receivable or related contracts;
(xiii) Liens created by or resulting from litigation or legal
proceedings that are being contested in good faith by appropriate proceedings and do not involve amounts that in the aggregate would exceed $50,000,000;
(xiv) Liens incidental to the normal conduct of the business of the Company or any of its subsidiaries or the ownership of its
property that are not incurred in connection with the incurrence of Indebtedness and that do not in the aggregate materially impair the use of such property in the operation of the business of the Company and its subsidiaries taken as a whole or the
value of such property for the purposes of such business;
(xv) Liens in respect of property of the Company or any of its
subsidiaries in connection with (a) the First Mortgage Bond Indentures or (b) customary mortgage bonds issued by the Company or its subsidiaries; and
(xvi) Liens which would otherwise not be permitted by clauses (i) through (xv) above, securing additional Indebtedness of
the Company or any of its subsidiaries, provided that the aggregate amount of all such secured Indebtedness does not exceed 10% of Total Assets.
Section 2.09.
Additional Notes
. The Notes may be reopened and additional Notes may be issued in excess of the limitation set forth
in Section 2.01,
provided
that such additional Notes shall contain the same terms and conditions as the Notes in all respects (except for the issue date, the issue price and, if applicable, the first interest payment date) as the other
Notes previously issued. Any such additional Notes, together with the other Notes, shall constitute a single series of Securities for purposes of the Indenture and this Supplemental Indenture;
provided
,
further,
that such additional
Notes will not bear the same CUSIP number as the Notes, unless such additional Notes are issued in a “qualified reopening” for U.S. federal income tax purposes or such additional Notes are part of the same issue as the Notes for U.S.
federal income tax purposes.
Section 2.10.
Denomination and Form of Notes
. The Notes shall be fully registered, without
coupons, and issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof. Except as provided in Section 2.07 of the Indenture, the Notes shall be issuable only as Global Securities representing the entire aggregate
principal amount of the Notes and shall be substantially in the form attached as Exhibit A hereto.
Section 2.11.
Initial
Depositary
. The initial Depositary for the Notes shall be The Depository Trust Company.
Section 2.12.
Additional Amounts
.
No additional amounts contemplated in Section 2.03(m) of the Indenture shall be payable in respect of the Notes.
7
ARTICLE III
MISCELLANEOUS
Section 3.01.
Governing Law
. The laws of the State of New York shall govern this Supplemental Indenture and the Notes, without
giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
Section 3.02.
Successors
. All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors.
All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
Section 3.03.
Duplicate Originals
.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 3.04.
Separability
. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.05.
Effect of Supplemental Indenture
. This Supplemental Indenture supplements the Indenture and shall be a part, and
subject to all the terms, thereof. The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument. All provisions included in this Supplemental Indenture supersede any conflicting provisions included in the Indenture unless not permitted by law. The provisions of this Supplemental Indenture are intended to apply solely to the
Notes and the Holders thereof and shall not apply to any future issuance of Securities by the Company and all references to provisions of the Indenture herein amended and restated or otherwise modified shall have effect solely with respect to the
Notes contemplated in this Supplemental Indenture.
Section 3.06.
Counterparts
. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be deemed to be an original and all of them together shall represent the same agreement.
Section 3.07.
No Responsibility of the Trustee
. The recitals herein contained are made by the Company and not by the Trustee, and
the Trustee does not assume any responsibility for the correctness thereof. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture.
8
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the date first written
above.
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AVANGRID, INC.,
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as the Company
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By:
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/s/ Richard J. Nicholas
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Name: Richard J. Nicholas
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Title: Senior Vice President — Chief Financial
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Officer
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By:
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/s/ Daniel Alcain
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Name: Daniel Alcain
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Title: Senior Vice President — Controller
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[
Signature Page to First Supplemental Indenture
]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed, all as of the date first written above.
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THE BANK OF NEW YORK MELLON,
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as the Trustee
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By:
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/s/ Efren Almazan
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Name: Efren Almazan
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Title: Vice President
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[
Signature Page to First Supplemental Indenture
]
EXHIBIT A
Form of Notes
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
“
DEPOSITARY
”
) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE
& CO., OR SUCH OTHER NAME REQUESTED BY THE DEPOSITARY, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO 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.
3.150% Notes due 2024
AVANGRID, INC.
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Issue Date: November 21, 2017
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Maturity Date: December 1, 2024
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Principal Amount: $
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CUSIP No.: 05351W AA1
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Registered:
R-
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ISIN No.: US05351WAA18
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Avangrid, Inc., a New York corporation (the “
Company
,” which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
Million Dollars ($ ) on December 1, 2024, and to pay
interest thereon from the Issue Date or from the most recent interest payment date to which interest has been paid or duly provided for, semiannually on June 1 and December 1 in each year, commencing June 1, 2018, until and including
the Maturity Date (each, an “Interest Payment Date”), at the rate of 3.150%
A-1
per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in
such Indenture, be paid to the Person in whose name this Security is registered at the close of business on the record date for such interest, which shall be May 15 or November 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date (each, a “
Regular Record Date
”). Any such interest so payable, but not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or more predecessor securities) is registered at the close of business on a special record date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such special record date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on
which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be made at the office or agency of the Company
maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case of any
payment due at the maturity of the principal hereof;
provided
,
however
, that, at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in
the Security Register;
provided
,
further
, that, if this Security is a Global Security, payment may be made pursuant to the applicable procedures of the Depositary as permitted in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on its behalf by its
duly authorized officers.
Dated: November 21, 2017
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AVANGRID, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-3
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: November 21, 2017
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THE BANK OF NEW YORK MELLON,
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as Trustee
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By:
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Name:
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Title:
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A-4
(REVERSE OF SECURITY)
3.150% Notes due 2024
This
Security is one of a duly authorized issue of securities of the Company (herein called the “
Securities
”), issued and to be issued in one or more series under an Indenture, dated as of November 21, 2017 (the “Base
Indenture”), as supplemented by the first supplemental indenture thereto dated as of November 21, 2017 (collectively, the “Indenture”), between the Company and The Bank of New York Mellon, as Trustee (herein called the
“
Trustee
,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited initially in aggregate
principal amount to $600,000,000.00.
At any time and from time to time prior to October 1, 2024 (the “Par Call Date”), the
Company may, at its option, redeem all or any portion of the Securities, on not less than 10 nor more than 60 days’ prior notice mailed to the Holders of the Securities to be redeemed in accordance with Section 3.02 of the Base Indenture,
at a redemption price equal to the greater of (a) 100% of the principal amount of the Securities to be redeemed and (b) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed
that would be due if such Securities matured on the Par Call Date (exclusive of interest accrued to the redemption date), discounted to the redemption date on a semi-annual basis (assuming a
360-day
year
consisting of twelve
30-day
months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest on the principal amount of the Securities to be redeemed to, but excluding, such
redemption date.
At any time and from time to time on or after the Par Call Date, the Company may, at its option, redeem all or any
portion of the Securities, on not less than 10 nor more than 60 days’ prior notice mailed to the Holders of the Securities to be redeemed in accordance with Section 3.02 of the Base Indenture, at a redemption price equal to 100% of the
principal amount of the Securities to be redeemed plus accrued and unpaid interest on the principal amount of the Securities to be redeemed to, but excluding, such redemption date.
In connection with such optional redemption, the following defined terms apply:
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The City of New York.
“Comparable Treasury Issue”
means the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed (assuming, for this purpose, that the Securities matured on the
Par Call Date) 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 a comparable maturity to the remaining term of the Securities.
A-5
“Comparable Treasury Price” means, with respect to any redemption date, (a) the
average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (b) if the Quotation Agent obtains fewer than four of such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
“Quotation Agent” means one of the Reference
Treasury Dealers selected by the Company, or if any such firm is unwilling or unable to serve as such, an independent investment and banking institution of national standing appointed by the Company.
“Reference Treasury Dealer” means each of BNP Paribas Securities Corp., Citigroup Global Markets Inc., Wells Fargo Securities, LLC
and a Primary Treasury Dealer (as defined below) selected by BBVA Securities Inc., or their respective affiliates or successors, each of which is a primary U.S. Government securities dealer in the United States (a “Primary Treasury
Dealer”) and one other nationally recognized investment banking firm that is a Primary Treasury Dealer specified from time to time by the Company, except that if any of the foregoing ceases to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to
the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity
or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
If less than all the Securities are to be redeemed, (i) if the Securities are held by a Depositary, the applicable operational
procedures of the Depositary for selection of Securities for redemption will apply and (ii) if the Securities are not held by a Depositary, the Trustee shall select the Securities to be redeemed either pro rata, by lot or in such manner as it
shall deem appropriate and fair.
The notice of redemption to each such Holder shall specify the principal amount of each Security held by
such Holder to be redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the manner of calculation thereof, the place or places of payment, that payment will
be made upon presentation and surrender of such Securities, that interest accrued to, but excluding, the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof
to be redeemed will cease to accrue and that such Securities subject to such redemption shall cease to be outstanding and the Holders thereof shall have no rights with respect thereto other than the right to receive the redemption price upon
presentment and surrender. In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and tenor in principal amount equal to the unredeemed portion thereof will be issued.
A-6
In case any Security is to be redeemed in part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof shall be issued in the name of the Holders hereof upon the cancellation hereof.
The
Trustee shall have no obligation to calculate the redemption price in connection with any redemption of all or any portion of the Securities.
So long as any of the Securities are outstanding, the Company shall be bound to the covenants set forth in the Indenture applicable to the
Securities.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain
restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
The Securities shall not be subject to any sinking fund.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of all series to be affected (considered together as one class for this purpose). Any consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the Holders of at least 25% in aggregate principal amount of outstanding Securities of all such series affected shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee, such Holder or Holders have offered the Trustee indemnity satisfactory to it against any costs, liabilities or expenses to be incurred in compliance with such request, and the Trustee shall
not have received from the Holders of a majority in principal amount of the outstanding Securities of all such affected series a direction that is inconsistent with such written request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
A-7
No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office of the Registrar, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed
by the Holder hereof or the Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount shall be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due
presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered upon the Security Register for such series as the absolute
owner hereof (whether or not this Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for all 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.
The Securities of this series are issued in fully registered form, without coupons, and issued in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
This Security is a Global Security and is subject to the
provisions of the Indenture relating to Global Securities, including the limitations in Section 2.07 of the Base Indenture on transfers and exchanges of Global Securities.
The laws of the State of New York shall govern this Security and the Indenture, without giving effect to applicable principles of conflicts of
law to the extent that the application of the laws of another jurisdiction would be required thereby.
All terms used in this Security
that are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.
A-8
