Exhibit 1.1
$150,000,000
UNITED INSURANCE
HOLDINGS CORP.
UNDERWRITING AGREEMENT
6.250% Senior Notes due 2027
December 7, 2017
R
AYMOND
J
AMES
& A
SSOCIATES
, I
NC
.
W
ELLS
F
ARGO
S
ECURITIES
, LLC
|
c/o
|
Raymond James & Associates, Inc.
|
880 Carillon Parkway
St. Petersburg, FL 33716
Wells
Fargo Securities, LLC
550 South Tryon Street, 5
th
Floor
Charlotte, NC 28202
Ladies and Gentlemen:
United Insurance Holdings Corp., a Delaware corporation (the “
Company
”), confirms its agreement with Raymond James &
Associates, Inc. and Wells Fargo Securities, LLC (the “
Representatives
”) on behalf of the several Underwriters listed in
Schedule I
hereto (together, the “
Underwriters
”), with respect to the issue and sale by
the Company, and the purchase by the Underwriters, acting severally and not jointly, of $150,000,000 in aggregate principal amount of the Company’s 6.250% Senior Notes due 2027 (the “
Notes
”). The Notes will be issued under an
indenture (the “
Indenture
”) to be dated as of December 13, 2017, between the Company and Deutsche Bank Trust Company Americas, as trustee (the “
Trustee
”). The Notes are described more fully in the Prospectus,
referred to below.
The Company hereby confirms its agreement with the Underwriters concerning the purchase and sale of the Notes as
follows:
1.
Representations and Warranties
. The Company represents and warrants to, and agrees with, the Underwriters that:
(a)
Registration Statement
. The Company has prepared and filed with the Securities and Exchange Commission (the
“
Commission
”) a registration statement on Form
S-3
(File
No. 333-221251),
which contains a base prospectus (the “
Base
Prospectus
”), to be used in connection with the public offering and sale of the Company’s debt securities, including the Notes, and other securities of the Company. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, and including any required information deemed to be a part thereof pursuant to Rule 430B under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively,
the “
Securities Act
”), at each time of effectiveness, is called the “
Registration Statement
.” The term “
Preliminary Prospectus
” shall mean any preliminary prospectus supplement relating to the
Notes, together with the Base Prospectus, that is filed pursuant to Rule 424(b) under the Securities Act prior to the date and time that this agreement (the “
Agreement
”) is executed and delivered by the parties hereto (the
“
Execution Time
”). The term “
Prospectus
” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the Execution Time. Any reference herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be, shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Item 12 of Form
S-3
under the Securities Act, as of the effective date of the
Registration Statement, or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus, as the case may be, shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “
Exchange Act
”), that are deemed to be incorporated by reference therein. All references in this Agreement to the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”) (except as may be permitted by Regulation
S-T
under the Securities Act). The Company satisfies all of the requirements of the Securities Act for use of Form
S-3
for the offering of the Notes contemplated hereby.
(b)
Disclosure Package
. The term “
Disclosure Package
” shall mean (A) any Preliminary Prospectus, as it may be
amended or supplemented, (B) the Base Prospectus, (C) the issuer free writing prospectuses as defined under Rule 433 of the Securities Act relating to the Notes identified on
Schedule II
hereto (each, an “
Issuer Free Writing
Prospectus
”) and (D) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. The Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than a communication referred to in clauses (A), (B), (C) and (D) above. As of 5:00 p.m. (Eastern time) on the date of this Agreement (the
“
Initial Sale Time
”), and as of the Closing Date (as hereinafter defined), the Disclosure Package did not, and will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. As of each time of broadcast, and as of the Closing Date, each electronic road show, when taken together as a whole with the Disclosure Package,
did not, and will 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
two sentences do not apply to statements in, or omissions from, the Disclosure Package or each electronic road show based upon and in conformity with written information relating to any Underwriter furnished to the Company by or on behalf of any
Underwriter 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
6(b)
hereof (the
“
Underwriter Information
”).
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(c)
Registration Statement, Prospectus and Incorporated Documents
. As of the date hereof,
when the Prospectus is first filed with the Commission pursuant to Rule 424(b) under the Securities Act, when any supplement or amendment to the Prospectus is filed with the Commission, at the Closing Date and, with respect to the Registration
Statement in (A) and (B) below, as of the Initial Sale Time, (A) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, complied, complies or will comply in all
material respects with the applicable provisions under the Securities Act, (B) the Registration Statement, as amended as of any such time, did not, does 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, and (C) the Prospectus, as amended or supplemented as of any such time, did not, does not and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
provided, however
, that the
Company makes no representations or warranties as to (i) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification of the Trustee (Form
T-1)
under the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “
Trust Indenture Act
”), of the Trustee, (ii) the Underwriter Information, or (iii) any statement that does not
constitute part of the Registration Statement or the Prospectus pursuant to Rule 412 under the Securities Act. The documents that are incorporated by reference in the Registration Statement, the Disclosure Package, any Preliminary Prospectus or the
Prospectus, when they were filed with the Commission, complied in all material respects with the requirements under the Exchange Act, and did not, when such documents were so filed, include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Registration Statement has been declared effective by the Commission. The
Commission has not issued any order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, and the Company is without knowledge that any proceedings
have been instituted for either purpose or pursuant to Section 8A of the Securities Act.
(d)
Not An Ineligible Issuer
.
(A) At the earliest time after the Company or another offering participant made a
bona fide
offer (within the meaning under Rule 164(h)(2) under the Securities Act) and (B) as of the date of the execution and delivery of this
Agreement (with such date being used as a determination date for purposes of this clause (B)), the Company neither was nor is an Ineligible Issuer (as defined in Rule 405 under the Securities Act).
(e)
Issuer Free Writing Prospectus
. No Issuer Free Writing Prospectus (including the Final Term Sheet), as of its issue date and at all
subsequent times through the completion of the offering contemplated hereby or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, included, includes or will include any information
that conflicted, conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein, any Preliminary Prospectus or the Prospectus, that had not or has not been superseded
or modified. If at any time following delivery of an Issuer Free Writing Prospectus and prior to the end of the Prospectus Delivery Period (as defined below), there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or supplement, at its own
3
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from an Issuer Free Writing Prospectus
based upon and in conformity with Underwriter Information. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act and has been or will be (within the time period specified in Rule 433) filed in accordance with
the Securities Act (to the extent required thereby). The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in
connection with the offering and sale of the Notes other than the Registration Statement, any Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in
Schedule
II
hereto.
(f)
Indenture
. The Indenture has been duly authorized by the Company and, on the Closing Date, will have been
(i) duly qualified under the Trust Indenture Act and (ii) duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a legal, valid, and binding instrument of
the Company enforceable against the Company in accordance with its terms, except as may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies. The Indenture conforms in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package
and the Prospectus.
(g)
Notes
. The Notes have been duly authorized for issuance and sale by the Company, and, when issued and
delivered to each Underwriter against payment therefor pursuant to this Agreement and authenticated in accordance with the provisions of the Indenture, will be entitled to the benefits of the Indenture, will be duly and validly issued and
outstanding and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies. The Notes conform in all material respects to the description thereof
contained in the Registration Statement, the Disclosure Package and the Prospectus.
(h)
No Conflicts
. The issue and sale of the
Notes, the execution and delivery of, and compliance by, the Company with all of the provisions of this Agreement and the Indenture, the consummation of the transactions herein and therein contemplated, and the performance of its obligations
hereunder and thereunder, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter,
by-laws
or
similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality, court,
arbitrator or regulatory authority, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations, except, in the case of clauses (i) and (iii) above, 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 (as defined below).
4
(i)
Absence of Further Requirements
. (i) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (ii) no authorization, approval, vote or other consent of any holder of capital stock or other securities of
the Company or any creditor of the Company and (iii) no waiver or consent under any existing credit agreement, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which either the Company or its subsidiaries or any of their properties may be bound or to which any of their property or assets is subject, is necessary or required for the issuance and sale of the Notes and the execution and
delivery of, and compliance by, the Company with all of the provisions of this Agreement and the Indenture, and the consummation of the transactions herein and therein contemplated, and the performance of its obligations hereunder and thereunder,
except (x) such as have been obtained or made by the Company and are in full force and effect, (y) as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale
of the Notes or (z) in the cases of clauses (ii) and (iii), as would not reasonably be expected to materially adversely interfere with the issuance and sale of the Notes and the performance of the Company’s obligations thereunder.
(j)
No Material Adverse Change in Business
. Since the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), and except as may be otherwise stated or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, (i) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “
Material Adverse Effect
”), (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those
that are in the ordinary course, which are material with respect to the Company and its subsidiaries considered as one enterprise, (iii) there has been no obligation or liability, direct or contingent (including any
off-balance
sheet obligations) incurred by the Company or its subsidiaries, which is material to the Company and its subsidiaries considered as one enterprise, (iv) there has been no material change in the
outstanding short-term debt or long-term debt of the Company or any of its Significant Subsidiaries (as defined below), and (v) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(k)
No Violation or Default
. Neither the Company nor any of its Significant Subsidiaries (as defined below) is
(i) in violation of (A) its certificate of incorporation or bylaws, or other organizational documents, (B) any federal, state or foreign law, ordinance, administrative or governmental rule or regulation applicable to the Company or
any of its Significant Subsidiaries, the violation of which would reasonably be expected to have a Material Adverse Effect or (C) any decree of any federal, state or foreign court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries, the violation of
5
which would reasonably be expected to have a Material Adverse Effect; or (ii) in default in the performance of any obligation, agreement, covenant or condition contained in (A) any
bond, debenture, note or any other evidence of indebtedness or (B) any agreement, indenture, lease or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which any of their properties may
be bound, which default would reasonably be expected to have a Material Adverse Effect.
(l)
Legal Proceedings
. Except as disclosed
in the Company’s filings with the Commission, there are no legal, regulatory or governmental actions, suits, claims or proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its subsidiaries is or
would be a party or of which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by
any self-regulatory organization or other
non-governmental
regulatory authority (including without limitation, any insurance or insurance holding company regulatory proceeding) that are required to be
described in the Registration Statement, the Disclosure Package and the Prospectus, and are not so described therein, or which, individually or in the aggregate, if resolved adversely to the Company or such subsidiary, would reasonably be likely to
result in a Material Adverse Effect or prevent or materially and adversely affect the ability of the Company to consummate the transactions contemplated hereby.
(m)
Investment Company Act
. The Company is not and, after giving effect to the offering and sale of the Notes and the application of the
proceeds thereof as described in the Registration Statement, the Disclosure Package and the Prospectus, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder.
(n)
Possession of Licenses and Permits
. The Company and its
subsidiaries possess all licenses, permits, approvals, consents and other authorizations (collectively, “
Governmental Licenses
”) issued by the appropriate federal, state and foreign governments, governmental or regulatory
authorities, self-regulatory organizations and all courts or other tribunals (including, without limitation, all state insurance regulatory authorities), necessary to conduct their respective businesses, as described in the Registration Statement,
the Disclosure Package and the Prospectus, except where failure to possess such Governmental Licenses would not reasonably be expected to result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material Adverse Effect.
6
(o)
Independent Registered Public Accounting Firm
. RSM US LLP, which has expressed its
opinion with respect to the financial statements (including the related notes thereto and supporting schedules) filed with the Commission as a part of the Registration Statement and incorporated by reference in the Disclosure Package and the
Prospectus, is an independent registered public accounting firm with respect to the Company as required by the Securities Act, the Exchange Act and the rules of the Public Company Accounting Oversight Board.
(p)
Accounting Controls
. The Company and its subsidiaries maintain and have maintained effective internal control over financial
reporting as defined in Rule
13a-15
under the Exchange Act and 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 in the United States
(“
GAAP
”) and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the Disclosure Package or the Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial
reporting that has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s internal control over financial reporting.
(q)
Disclosure Controls
. The Company and its subsidiaries employ and have employed as defined in Rule
13a-15
under the Exchange Act that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial
officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(r)
Compliance with the Sarbanes-Oxley Act
.
The Company is in compliance in all material respects with the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(s)
Organization and Good Standing of the Company
. The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus and to enter into
and perform its obligations under, or as contemplated under, this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of Florida and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected to result in a Material Adverse
Effect.
7
(t)
Organization and Good Standing of the Subsidiaries
. Each significant subsidiary (as
defined in
Rule 1-02(w) of
Regulation S-X)
of the Company is set forth on
Schedule IV
hereto (each a “
Significant Subsidiary
,” and
collectively, the “
Significant Subsidiaries
”) and has been duly organized or incorporated, as the case may be, and is validly existing as a corporation, limited or general partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization or incorporation, as the case may be, has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and is duly qualified as a foreign corporation, limited or general partnership or limited liability company, as the case may be, to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(u)
Capitalization of Significant Subsidiaries
. Except as otherwise disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Significant Subsidiary that is a corporation, all of the issued and outstanding partnership interests of each Significant Subsidiary that
is a limited or general partnership and all of the issued and outstanding limited liability company interests, membership interests or other similar interests of each Significant Subsidiary that is a limited liability company have been duly
authorized and validly issued and (in the case of capital stock) are fully paid and
non-assessable
and are owned by the Company, directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. Except in each case as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, no Significant Subsidiary is currently prohibited, directly or indirectly,
under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such Significant Subsidiary’s capital stock, from repaying to the Company any loans or
advances to such Significant Subsidiary from the Company or from transferring any of such Significant Subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(v)
Authorization of Agreement
. The Company has the full right, power and authority to execute and deliver this Agreement and to perform
its obligations hereunder. The Company’s execution and delivery of this Agreement and the performance by the Company of its obligations under this Agreement have been duly authorized by the Company. This Agreement has been duly executed and
delivered by the Company, and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by (i) the application of
bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, except as rights to indemnity
and contribution hereunder may be limited by federal or state securities laws.
(w)
Financial Statements
. The financial statements
of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, together with the related schedules (if any) and notes, present fairly, in all material
respects, the financial position of the entities to which they relate at the dates indicated and the results of operations, changes in stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods
specified. The financial
8
statements of any other entities or businesses included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, together with the related schedules
(if any) and notes, present fairly, in all material respects, the financial position of each such entity or business, as the case may be, and its consolidated subsidiaries (if any) at the dates indicated and the results of operations, changes in
stockholders’ (or other owners’) equity and cash flows of such entity or business, as the case may be, and its consolidated subsidiaries (if any) for the periods specified; and all such financial statements have been prepared in conformity
with GAAP applied on a consistent basis throughout the periods involved (except as otherwise stated therein and subject, in the case of unaudited financial statements, to the absence of footnotes and normal
year-end
adjustments) and comply in all material respects with all applicable accounting requirements under the Securities Act. The supporting schedules, if any, included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus present fairly in all material respects, in accordance with GAAP, the information required to be stated therein. Any information contained in the Registration Statement, the
Disclosure Package or the Prospectus regarding
“non-GAAP
financial measures” (as defined in Regulation G of the Commission) complies with Regulation G and Item 10 of Regulation
S-K
of the Commission, to the extent applicable.
(x)
eXtensible Business Reporting Language
. The
interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents in all material respects the required information and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
(y)
Statistical, Demographic or Market-Related Data
. Any statistical,
demographic or market-related data included, or incorporated by reference, in the Registration Statement, the Disclosure Package or the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate,
and all such data included, or incorporated by reference, in the Registration Statement, the Disclosure Package or the Prospectus accurately reflect the materials upon which they are based or from which they were derived.
(z)
Foreign Corrupt Practices Act
. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (collectively, the “
FCPA
”), or any other applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed
an offense under the Bribery Act of 2010 of the United Kingdom, or any other applicable anti-corruption or anti-bribery laws; and the Company and its subsidiaries and, to the knowledge of the Company, its other affiliates conduct their businesses in
compliance with the FCPA and any other applicable anti-bribery and anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(aa)
Money Laundering Laws
. The operations of the Company and its subsidiaries are conducted in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental
agency.
9
(bb)
No Conflicts with Sanctions Laws
. Neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject of any sanctions administered or enforced by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“
OFAC
”) or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“
Sanctions
”), nor is controlled by an individual or entity that is currently subject to Sanctions, nor is the Company, any of its subsidiaries located, organized or resident in a country or territory that is the subject or the
target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and Crimea (each, a “
Sanctioned Country
”); and the Company will not, directly or indirectly use any of the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity for the purpose of funding the activities of any person currently subject to Sanctions or for the purpose of funding any business
in any Sanctioned Country.
(cc)
Absence of Registration Rights
. There are no persons with registration rights or other similar
rights to have any securities (debt or equity) registered under the Securities Act or included in the offering contemplated by this Agreement, and there are no persons with
co-sale
rights,
tag-along
rights or other similar rights to have any securities (debt or equity) included in the offering contemplated by this Agreement or sold in connection with the sale of Notes pursuant to this Agreement; and
the Company has given all notices required by, and has otherwise complied with its obligations under, all registration rights agreements,
co-sale
agreements,
tag-along
agreements and other similar agreements in connection with the transactions contemplated by this Agreement.
(dd)
Good Title to
Property
. The Company and its subsidiaries have good and marketable title in fee simple to all real property owned by any of them and good title to all other properties and assets owned by any of them, in each case, free and clear of all liens,
claims, security interests, other encumbrances or defects (collectively, “
Liens
”) except such Liens as (a) are described in the Prospectus and the Disclosure Package or (b) would not or would not reasonably be expected to,
individually or in the aggregate, materially affect the value of such property and would not or would not reasonably be expected to interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries. All
real property, buildings and other improvements, and equipment and other property held under lease or sublease by the Company or any of its subsidiaries are held by them under valid, subsisting and enforceable leases or subleases, as the case may
be, with, solely in the case of leases or subleases relating to real property and buildings or other improvements, such exceptions as are not material and do not interfere with the use made or proposed to be made of such property and buildings or
other improvements by the Company and its subsidiaries, and all such leases and subleases are in full force and effect. Neither the Company nor any of its subsidiaries has any notice of any claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any of its subsidiaries under any of the leases or subleases mentioned above or affecting or questioning the rights of the Company or any of its subsidiaries to the continued possession of the leased or subleased
premises under any such lease or sublease except for such claims which, if successfully asserted against the Company or any of its subsidiaries, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
10
(ee)
Intellectual Property Rights
. The Company and each of its subsidiaries owns or
possesses the right to use all patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, software, databases,
know-how,
Internet
domain names, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures, and other intellectual property (collectively, “
Intellectual Property
”) necessary to carry on its
businesses as currently conducted, and as proposed to be conducted as described in the Disclosure Package and the Prospectus. Neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interests of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(ff)
Taxes
. Except as disclosed in its filings with the Commission, the Company and each of its subsidiaries (i) has timely filed
all material federal, state, local and foreign income and franchise tax returns (or timely filed applicable extensions therefor) that have been required to be filed and (ii) is not in default in the payment of any material taxes which were
payable pursuant to such returns or any assessments with respect thereto, other than any which the Company or any of its subsidiaries is contesting in good faith and for which adequate reserves have been provided and reflected in the Company’s
financial statements included in the Disclosure Package and the Prospectus. Neither the Company nor any of its subsidiaries has any tax deficiency that has been or, to the knowledge of the Company, is reasonably likely to be asserted or threatened
against it that would reasonably be expected to result in a Material Adverse Effect.
(gg)
ERISA
. (i) Each “employee
benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“
ERISA
”)), for which the Company or any member of its “
Controlled Group
” (defined as an
organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “
Code
”)) would have any liability (each a “
Plan
”) has
been maintained in compliance in all material respects with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan subject to Title IV of ERISA
(a) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA
or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (c) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined
based on those assumptions used to fund such Plan) and (d) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or
premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(c)(3) of ERISA); and (iii) each Plan that is
intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
11
(hh)
Compliance with Environmental Laws
. Except as otherwise disclosed in its filings with
the Commission and except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection
of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “
Hazardous Materials
”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively, “
Environmental Laws
”), (ii) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (iii) there are no pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (iv) to the knowledge of the Company, there are no events or circumstances that would reasonably be
expected to form the basis of an order for
clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for
clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(ii)
Insurance Reserving
Practices
. Neither the Company nor any of its direct or indirect insurance company subsidiaries or affiliates has made a material change in its insurance reserving practices since the respective dates as of which information is given in the most
recent financial statements and statutory financial statements, as applicable.
(jj)
Reinsurance
. All reinsurance and retrocessional
treaties, contracts, agreements and arrangements to which the Company or any of its direct or indirect insurance company subsidiaries or affiliates is a party are in full force and effect and neither the Company nor any such subsidiary or affiliate
is in violation of, or in default in the performance, observance or fulfillment of, any obligation, agreement, covenant or condition contained therein, with such exceptions that would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and neither the Company nor any such subsidiary or affiliate has received any notice from any of the other parties to such treaties, contracts, agreements or arrangements that such other party intends not to perform
thereunder and, to the knowledge of the Company and such subsidiaries and affiliates, none of the other parties to such treaties,
12
contracts, agreements or arrangements will be unable to perform thereunder except to the extent adequately and properly reserved for in the consolidated financial statements of the Company, with
such exceptions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(kk)
Insurance
. The Company and each of its subsidiaries maintains or is covered by insurance provided by recognized, financially sound and reputable institutions with insurance policies in such amounts and covering such risks as is adequate for
the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries. Neither the Company nor any of its subsidiaries insures risk of loss through any captive insurance,
risk retention group, reciprocal group or by means of any fund or pool of assets specifically set aside for contingent liabilities other than as described in the Disclosure Package and the Prospectus.
(ll)
Brokers Fees
. Except as disclosed in the Prospectus and the Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person (other than this Agreement) that would give rise to a claim against the Company or the Underwriters for a brokerage commission, finder’s fee or other like payment in connection with the offering
and sale of the Notes.
(mm)
Forward-Looking Statements
. No forward-looking statements (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in either the Disclosure Package or the Prospectus have been made without a reasonable basis therefor or have been disclosed other than in good faith.
(nn)
Absence of Manipulation
. Other than excepted activity under the Exchange Act, neither the Company nor, to the Company’s
knowledge, any of its officers, directors, affiliates or controlling persons has taken or will take, directly or indirectly, any action designed to or that would constitute or that would reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(oo)
Margin Rules
.
Neither the issuance, sale and delivery of the Notes nor the application of the proceeds thereof by the Company as described in the Prospectus will violate Regulation T, U, or X of the Board of Governors of the Federal Reserve System, as the same in
effect on the Closing Date.
Any certificate signed by any officer of the Company and delivered to the Representatives or to counsel for
the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.
Purchase, Sale and Delivery of the Notes
.
(a) The Company agrees to issue and sell the Notes to the Underwriters as provided in this Agreement, and each Underwriter agrees, severally
and not jointly, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, to purchase from the Company, at a price equal to 98.000% of their principal amount, the aggregate
principal amount of Notes set forth on
Schedule I
hereto opposite such Underwriter’s name.
13
(b) Payment for and delivery of the Notes will be made at the offices of Troutman Sanders LLP,
875 Third Avenue, New York, New York 10022 at 9:00 a.m. (Eastern time), on December 13, 2017, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the
Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “
Closing Date
.”
(c) Payment for the Notes shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company (“
DTC
”), for the respective account of each Underwriter, of one or more global notes representing the Notes (collectively, the “
Global
Note
”), with any transfer taxes payable in connection with the sale of the Notes duly paid by the Company. The Global Note will be made available electronically for inspection by the Representatives not later than 1:00 p.m., Eastern time,
on the business day prior to the Closing Date. Any review by the Representatives will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
3.
Agreements
. The Company covenants and agrees with each Underwriter that:
(a) During the period beginning at the Initial Sale Time and ending on the Closing Date (or, upon written notice to the Company on the Closing
Date, such later date, as in the opinion of counsel for the Representatives, the Prospectus is no longer required by law to be delivered in connection with sales by any of the Underwriters or dealer (except for delivery requirements imposed because
any Underwriter or dealer is an affiliate of the Company), including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “
Prospectus Delivery Period
”)), the Company will not file any amendment to the
Registration Statement or supplement to the Base Prospectus or the Disclosure Package (including the Prospectus) unless the Company has furnished the Representatives a copy for review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object;
provided, however
, that the foregoing shall not apply to filings required to be made with the Commission in order to comply with the Exchange Act so long as any such filing is
provided to the Representatives a reasonable amount of time in advance of filing. The Company will cause the Prospectus to be filed with the Commission pursuant to Rule 424 via EDGAR. During the Prospectus Delivery Period, the Company will advise
the Representatives promptly (i) when any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424, (ii) when any amendment to the Registration Statement or the Disclosure Package relating to the
Notes shall have become effective, (iii) of any request by the Commission for any amendment of the Registration Statement or amendment of or supplement to the Prospectus or the Disclosure Package, the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus of the Prospectus or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, and (v) of the receipt by the Company of any
notification with respect to the
14
suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Notes and, if any such order is
issued, to obtain as soon as practicable the withdrawal thereof.
(b)
Ongoing Compliance
. If, at any time during the Prospectus
Delivery Period, any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus to comply with the Securities Act or
the Exchange Act, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this
Section
3
, an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance (including, if consented to by the Representatives, by means of an Issuer Free Writing Prospectus), and will give immediate notice, and confirm in writing, to the
Representatives to cease the solicitation of offers to purchase the Notes, and furnish to the Representatives upon request a reasonable number of copies of such amendment or supplement.
(c)
Earnings Statement
. The Company will make generally available to its security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (which need not be audited) that satisfies the provisions of, and that provides the benefits contemplated by, Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(d)
Delivery of Copies
. The Company will furnish to the Representatives and
counsel for the Representatives, without charge, copies of the Registration Statement (including exhibits and documents incorporated by reference thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and,
so long as delivery of a prospectus by any Underwriter or dealer may be required by the Securities Act, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request.
(e)
Blue Sky Compliance
. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the Notes;
provided, however,
that the Company shall not be required (i) to qualify to do business as a foreign corporation or other entity or as a dealer in securities
in any jurisdiction where it is not now so qualified, (ii) to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject, or (iii) subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f)
Final Term Sheet
. The Company will
prepare a final term sheet containing a description of the Notes, in a form approved by the Representatives and contained in
Schedule
III
of this Agreement, and will file such term sheet pursuant to Rule 433(d) under the Securities Act
as promptly as practicable, but in any case not later than the time required by such rule (such term sheet, the “
Final Term Sheet
”).
15
(g)
Issuer Free Writing Prospectus
. The Company represents that it has not made and agrees
that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined under Rule 405 under the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Securities Act;
provided
that the prior written consent of the
Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in
Schedule III
hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a
“
Permitted Free Writing Prospectus
,” The Company agrees that (i) it has treated and will treat as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) it has complied and
will comply, as the case may be, with the requirements under Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The
Company consents to the use by the Underwriters of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined under Rule 433, and (b) contains only (i) information describing the preliminary
terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the
Company contemplated in
Section
3(f)
above. The Underwriters will not distribute any offering material in connection with the offering and sale of the Notes other than the Registration Statement, any Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus included in
Schedule II
hereto and the free writing prospectuses referred to in the foregoing sentence.
(h)
Additional Documents Filed or Incorporated by Reference
. The Company agrees that any further documents filed and incorporated by
reference in the Registration Statement, the Disclosure Package, any Preliminary Prospectus or the Prospectus, when such documents are filed with the Commission, will comply in all material respects with the requirements under the Securities Act or
the Exchange Act, as applicable, and will not, when such documents are so filed, include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(i)
Filing Fee
. The Company has paid the required Commission
filing fees relating to the Notes in accordance with Rule 457 under the Securities Act.
(j)
Use of Proceeds
. The Company will apply
the net proceeds from the sale of the Notes substantially as described in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds” and, in connection therewith, will satisfy and discharge
that certain indenture, dated as of December 5, 2016, between the Company, as issuer, Deutsche Trustee Company Limited, as trustee, Deutsche Bank AG, London Branch, as paying agent, and Deutsche Bank Luxembourg S.A., as registrar.
16
(k)
No Stabilization
. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Notes.
(l)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m)
Restriction on Sale of the Notes
. During the period commencing on the date hereof and ending at the Closing Date, the Company
will not, without the prior written consent of the Representatives (which consent may be withheld at the Representatives’ discretion), (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for the sale of, or lend or otherwise transfer or dispose of, the Notes or any securities that are substantially similar to the Notes, whether owned as of the date hereof or
hereafter acquired or with respect to which the Company has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Notes or such other securities, whether any such transaction, swap or other agreement
described in clause (i) or (ii) above is to be settled by delivery of any Notes or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Notes to be sold hereunder.
4.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters to severally and not jointly purchase the Notes as provided
herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company made in
any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement,
shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) the Company shall have filed any Preliminary Prospectus and the Prospectus with the Commission (including the information required by Rule
430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by
such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission); and
17
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant
to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b).
(b)
Ratings
. On or after the date hereof and up to and including the Closing Date, (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(c)
No Material Adverse Change
. Subsequent to the respective dates as of which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, no event or condition of a type described in
Section
1(j)
shall have occurred or shall exist, which event or condition is not described in the Disclosure Package (excluding any
amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto), the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of
the Notes on the terms and in the manner contemplated by this Agreement, the Disclosure Package and the Prospectus.
(d)
Company Counsel
Opinions
. On the Closing Date, the Representatives shall have received the opinion and negative assurance letter of Sidley Austin LLP, counsel for the Company, dated the Closing Date, in the form attached as
Exhibit A
hereto.
(e)
Opinion of Counsel for the Underwriters
. The Representatives shall have received the opinion and negative assurance letter of
Troutman Sanders LLP, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives.
(f)
Certificate
. On the Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the
effect that the they have carefully examined the Disclosure Package, each electronic road show, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly
made at and as of the Closing Date and the Company has performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) except as set forth in or contemplated in the Disclosure Package and the Prospectus, no event set forth in
Sections 4(a)(i)
and
(b)
shall have occurred.
(g)
RSM US Comfort Letters
. On the date of this Agreement and the Closing Date, RSM US LLP
shall have furnished to the Representatives, letters, dated the date hereof and the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the
type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package
and the Prospectus.
18
(h)
Additional Documents
. Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the
conditions specified in this
Section
4
shall not have been fulfilled in all material respects when and as provided in this Agreement, 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.
5.
Payment of Expenses
. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including, without
limitation, (i) the preparation, printing, delivery to the Representatives and filing of the Registration Statement, the Disclosure Package and the Prospectus as originally filed and of each amendment or supplement thereto, (ii) the
preparation, issuance and delivery of the certificates for the Notes to the Representatives, including capital duties, stamp duties and transfer taxes, if any, payable upon issuance of any of the Notes, the sale of the Notes to the Underwriters and
the fees and expenses of any transfer agent or trustee for the Notes, (iii) the fees and expenses of the Trustee, including the fees and disbursement of counsel to any such trustee in connection with the Indenture and the Notes, (iv) the
fees and disbursements of the Company’s counsel and accountants, (v) the qualification of the Notes under state securities laws in accordance with the provisions of
Section
3(e)
, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky survey in an amount not to exceed $5,000, (vi) any fees charged by rating agencies for the rating of the
Notes, (vii) the fees and expenses of any depository and any nominee thereof in connection with the Notes, (viii) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and
(ix) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section.
If (i) this Agreement is terminated pursuant to
Section
8(i)
or
8(ii)
, (ii) the Company for any reason
fails to tender the Notes for delivery to any Underwriter or (iii) any Underwriter declines to purchase the Notes for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all reasonably documented
out-of-pocket
costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
6.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters
. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors
and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including
legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
19
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact included in the Prospectus (or any
amendment or supplement thereto), the Disclosure Package or any electronic road show, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with the Underwriter Information.
(b)
Indemnification of the Company
. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating to the Underwriter furnished to the Company in writing on behalf of each Underwriter expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto) or the Disclosure Package, it being understood and agreed that the only such information consists of the following: the statements set forth in the first, second and third sentence of the third paragraph and
the third sentence in the seventh paragraph under the caption “Underwriting” in the Prospectus.
(c)
Notice and
Procedures
. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the “
Indemnified Person
”) shall promptly notify the person against whom such indemnification may be sought (the “
Indemnifying Person
”) in writing;
provided
that the failure
to notify the Indemnifying Person shall not relieve it from any liability that it may have under this
Section
6
except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and
provided
, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this
Section
6
. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to
Section
6
that the Indemnifying Party may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
20
to the Indemnified Person; (iii) the Indemnified Person shall have concluded on the advice of counsel that there may be legal defenses available to it that are different from or in addition
to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriters shall be designated in writing by the Representatives and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and
any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d)
Contribution
. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified
Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid
or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other
from the offering of the Notes or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Notes
and the total underwriting discounts and commissions received by the Underwriters in connection
21
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Notes. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e)
Limitation on Liability
. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to
this
Section
6
were determined by
pro
rata
allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this
Section
6
, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the
total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Notes exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(1) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 6 are several in proportion to their respective purchase obligations hereunder and not joint.
(f)
Non-Exclusive
Remedies
. The remedies provided for in this
Section
6
are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
7.
Defaulting Underwriter
. If, on the Closing Date any Underwriter defaults on its obligation to purchase the Notes that it has agreed to purchase
hereunder on such date, the
non-defaulting
Underwriters may in their discretion arrange for the purchase of such Notes by other persons satisfactory to the Company on the terms contained in this Agreement. If,
within 24 hours after any such default by any Underwriter, the
non-defaulting
Underwriters do not arrange for the purchase of such Notes, then the Company shall be entitled to a further period of 24 hours
within which to procure other persons satisfactory to the
non-defaulting
Underwriters to purchase such Notes on such terms. If other persons become obligated or agree to purchase the Notes of a defaulting
Underwriter, either the
non-defaulting
Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company
or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in
Schedule I
hereto that,
pursuant to this
Section
7
, purchases Notes that a defaulting Underwriter agreed but failed to purchase.
22
If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by the
non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Notes that remains unpurchased on the Closing Date does
not exceed
one-tenth
of the aggregate principal amount of Notes to be purchased on such date, then the Company shall have the right to require each
non-defaulting
Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of Notes that such Underwriter agreed to purchase on such date) of
the Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
If, after giving effect to any
arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the
non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Notes
that remain unpurchased on the Closing Date exceeds
one-tenth
of the aggregate principal amount of Notes to be purchased on such date, or if the Company shall not exercise the right described in paragraph
(b) above, then this Agreement shall terminate without liability on the part of the
non-defaulting
Underwriters. Any termination of this Agreement pursuant to this
Section
7
shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in
Section
5
hereof and except that the provisions of
Section
6
hereof shall not terminate and shall remain in effect.
Nothing contained herein shall relieve a
defaulting Underwriter of any liability it may have to the Company or any
non-defaulting
Underwriter for damages caused by its default.
8.
Termination
. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Notes, if prior to such time (i) if there has been, at any time on or after the date of this Agreement or since the respective dates as of which information is given in the Disclosure Package or the Prospectus
(in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, or (ii) trading
in securities of the Company listed on NASDAQ shall have been suspended or limited or minimum prices shall have been established on such exchange, or (iii) a suspension or material limitation in trading securities generally on NASDAQ, the New
York Stock Exchange or the
over-the-counter
market, or (iv) a banking moratorium shall have been declared by Federal or New York State authorities or a material
disruption in the commercial banking or securities settlement or clearance services in the United States shall have occurred, or (v) if there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis (in the United States or elsewhere) or (vi) any change or development involving a prospective change in
national or international political, financial or economic conditions if the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the
Notes or proceed with the offering of the Notes.
9.
Representations and Indemnities to Survive
. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and of each of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Underwriters or the Company or any of the officers, directors or controlling persons referred to in
Section
6
hereof, and will survive delivery of and payment for the Notes. The
provisions of
Sections 5
and
6
hereof and this
Section
9
shall survive the termination or cancellation of this Agreement.
23
10.
Notices
. All notices and other communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or faxed and confirmed to them at: (i) Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, FL 33716, Attention: John Critchlow, Facsimile
Number: (727)
567-8058,
and (ii) Wells Fargo Securities, LLC, 550 South Tryon Street, 5
th
Floor, Charlotte, NC, 28202, Attention: Transaction
Management, Facsimile Number:
704-410-0326,
with a copy to Troutman Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308, Attention: W. Brinkley
Dickerson, Jr., Esq., Facsimile Number: (404)
885-3900;
or, if sent to the Company, will be mailed, delivered or faxed and confirmed to it at United Insurance Holdings Corp., 360 Central Avenue, Suite 900, St.
Petersburg, Florida 33701, Attention: John Forney, with a copy to Sidley Austin LLP, 1 South Dearborn, Chicago, Illinois, 60603, Attention: Brian Fahrney, Esq., Facsimile Number:
312-853-7036.
11.
Successors
. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in
Section
6
hereof, and no other person will have any right or obligation
hereunder. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Notes from the
Underwriters shall be deemed to be a successor merely by reason of such purchase.
12.
No Fiduciary Duties; Agreement Complete
.
(a) The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the
determination of the public offering price of the Notes and any related discounts and commissions, is an
arm’s-length
commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction
contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its affiliates, stockholders, creditors or employees or any other
party; (iii) no Underwriter has assumed or will assume an agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement;
(iv) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the Underwriters have no obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate. 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.
24
(b) The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
13.
Authority of the Representatives
. Any action
by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
14.
Research Analyst Independence
. The Company acknowledges that the Underwriters’ research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or
publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by applicable law, any
claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
15.
Consent to Jurisdiction
. The Company hereby submits to the
non-exclusive
jurisdiction of any U.S. federal or state court located in the Borough of Manhattan, the City and County of New York in any action, suit or proceeding arising out of or relating to or based upon
this Agreement or any of the transactions contemplated hereby, and the Company irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding in any such court arising out of or relating to this
Agreement or the transactions contemplated hereby and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum.
25
16.
USA Patriot Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56
(signed into law October 26, 2001), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include
the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
17.
Trial by Jury
. Each of the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and
the Underwriters 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 Agreement or the transactions contemplated hereby.
18.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the
meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary”
has the meaning set forth in Rule 405 under the Securities Act.
19.
Governing Law
. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20.
Counterparts
. This Agreement may be signed in counterparts (which may include counterparts delivered by
any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
21.
Amendments or Waivers
. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto
22.
Headings
. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page follows]
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms.
|
|
|
|
|
Very truly yours,
UNITED INSURANCE HOLDINGS CORP.
|
|
By:
|
|
/s/ Brad Martz
|
|
Name:
|
|
Brad Martz
|
|
Title:
|
|
Chief Financial Officer
|
27
|
|
|
CONFIRMED AND ACCEPTED
as of the date first
above written:
RAYMOND JAMES & ASSOCIATES, INC.
|
|
|
|
|
|
By:
|
|
/s/ Julian Bynum
|
|
Name:
|
|
Julian Bynum
|
|
Title:
|
|
Managing Director
|
WELLS FARGO SECURITIES, LLC
|
|
|
|
|
By:
|
|
/s/ Carolyn Hurley
|
|
Name:
|
|
Carolyn Hurley
|
|
Title:
|
|
Director
|
For themselves and on behalf of the Underwriters listed in Schedule I hereto.
SCHEDULE I
|
|
|
|
|
|
|
Underwriter
|
|
Principal Amount
of Notes to be Purchased
|
|
|
Raymond James & Associates, Inc.
|
|
$
|
75,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
$
|
75,000,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
150,000,000
|
|
SCHEDULE II
Issuer Free Writing Prospectuses
Final
Term Sheet, as set forth in Schedule III
SCHEDULE III
Filed Pursuant to Rule 433
Registration Statement
No. 333-221251
Issuer Free Writing Prospectus dated December 7, 2017
Pricing Term Sheet
United Insurance Holdings Corp.
6.250% Senior Notes due 2027
This term
sheet to the preliminary prospectus supplement, dated December 7, 2017 (the “Preliminary Prospectus Supplement”), should be read together with the Preliminary Prospectus Supplement before making a decision in connection with an
investment in the securities. The information in this term sheet supersedes the information contained in the Preliminary Prospectus Supplement to the extent that it is inconsistent therewith. Terms used but not defined herein have the meaning
ascribed to them in the Preliminary Prospectus Supplement.
|
|
|
|
|
Issuer:
|
|
United Insurance Holdings Corp.
|
|
|
|
|
Security:
|
|
6.250% Senior Notes due 2027 (the “Notes”)
|
|
|
|
|
Aggregate Principal Amount:
|
|
$150,000,000
|
|
|
|
|
Net Proceeds (Before Expenses):
|
|
$147,000,000
|
|
|
|
|
Trade Date:
|
|
December 7, 2017
|
|
|
|
|
Settlement Date:
|
|
December 13, 2017 (T+4)
|
|
|
|
|
Maturity Date:
|
|
December 15, 2027
|
|
|
|
|
Interest Payment Dates:
|
|
Semi-annually on each December 15 and June 15, commencing June 15, 2018
|
|
|
|
|
Coupon (Interest Rate):
|
|
6.250%, subject to adjustment as described in the Preliminary Prospectus Supplement
|
|
|
|
|
Coupon (Interest Rate) Adjustment:
|
|
The annual interest rate on the Notes will increase such that it will equal the Coupon (Interest Rate) payable on the Notes on the Trade Date plus 1.000%, or 100 basis points, per annum if, at any time, a Downgrade Event occurs. The
annual interest rate payable on the Notes will decrease back to the Coupon (Interest Rate) payable on the Notes on the Trade Date if a subsequent Upgrade Event occurs after a Downgrade Event.
|
|
|
|
|
Price to Public:
|
|
100.000% of the principal amount
|
|
|
|
|
Benchmark Treasury:
|
|
2.250% due November 15, 2027
|
|
|
|
|
Benchmark Treasury Price / Yield:
|
|
99-1+
/ 2.358%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+389 bps
|
|
|
|
|
|
|
|
|
Yield to Maturity:
|
|
6.250%
|
|
|
|
|
Optional Redemption Provisions:
|
|
|
|
|
|
|
Make-Whole Call:
|
|
At any time prior to September 15, 2027 at the applicable Treasury Rate plus 50 basis points.
|
|
|
|
|
Par Call:
|
|
On or after September 15, 2027
|
|
|
|
|
Change of Control:
|
|
Put at 101% of principal amount thereof, plus accrued and unpaid interest to, but excluding, the repurchase date.
|
|
|
|
|
Denominations:
|
|
$2,000 and increments of $1,000 in excess thereof
|
|
|
|
|
Distribution:
|
|
SEC Registered
|
|
|
|
|
CUSIP / ISIN:
|
|
910710 AA0 / US910710AA09
|
|
|
|
|
Joint Book-Running Managers:
|
|
Raymond James & Associates, Inc.
Wells
Fargo Securities, LLC
|
The issuer has filed a registration statement (including a prospectus) and the Preliminary Prospectus Supplement with the
SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the Preliminary Prospectus Supplement and the other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR or the SEC website at www.sec.gov. Alternatively, Raymond James & Associates, Inc. or Wells Fargo Securities, LLC can arrange to
send you the Preliminary Prospectus Supplement and the accompanying prospectus if you request it by calling Raymond James & Associates, Inc. at
1-800-248-8863
or calling Wells Fargo Securities, LLC at
1-800-645-3751.
Any disclaimer or other notice that may appear below are not applicable to this
communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent via email or another communication system.
SCHEDULE IV
Significant Subsidiaries
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|
|
|
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Name of Subsidiary
|
|
Jurisdiction of Formation
|
|
United Property & Casualty Insurance Company
|
|
Florida
|
|
|
|
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Interboro Insurance Company
|
|
New York
|
|
|
|
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American Coastal Insurance Company
|
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Florida
|
|
|
|
|
United Insurance Management, L.C.
|
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Florida
|
|
|
|
|
UPC Re
|
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Cayman Islands
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Exhibit 4.1
UNITED INSURANCE HOLDINGS CORP.
and
DEUTSCHE BANK
TRUST COMPANY AMERICAS,
as Trustee
INDENTURE
Dated as of
December 13, 2017
Debt Securities
CROSS REFERENCE SHEET
Provisions of Section 310 through 318(a) inclusive of the Trust Indenture Act of 1939 and the Indenture dated as of December 13,
2017, between United Insurance Holdings Corp. and Deutsche Bank Trust Company Americas, as trustee.
|
|
|
|
|
Section of Act
|
|
Section of Indenture
|
|
310(a)(1) and (2)
|
|
8.09
|
|
310(a)(3) and (4)
|
|
*
|
|
310(b)
|
|
8.08 and 8.10
|
|
311(a)
|
|
8.13
|
|
311(b)
|
|
8.13
|
|
312(a)
|
|
6.01 and 6.02(c)
|
|
312(b)
|
|
6.02(b)
|
|
312(c)
|
|
6.02(c)
|
|
313(a)(1), (2), (3), (4), (7) and (8)
|
|
6.04
|
|
313(a)(5) and (6)
|
|
*
|
|
313(b)(1)
|
|
*
|
|
313(b)(2)
|
|
6.04
|
|
313(c)
|
|
6.04
|
|
313(d)
|
|
6.04
|
|
314(a)(1)
|
|
6.03
|
|
314(a)(2)
|
|
6.03
|
|
314(a)(3)
|
|
6.03
|
|
314(b)
|
|
*
|
|
314(c)(1)
|
|
15.05
|
|
314(c)(2)
|
|
15.05
|
|
314(c)(3)
|
|
*
|
|
314(d)
|
|
*
|
|
314(e)
|
|
15.05
|
|
314(f)
|
|
*
|
|
315(a), (c) and (d)
|
|
8.01
|
|
315(b)
|
|
7.08
|
|
315(e)
|
|
7.09
|
|
316(a)(1)
|
|
7.07
|
|
316(a)(2)
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*
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316(a) last para.
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9.03
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316(b)
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7.10
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316(c)
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10.04
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317(a)
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7.02
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317(b)
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5.04
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318(a)
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15.07
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This cross reference sheet shall not, for any purpose, be considered part of the Indenture.
i
TABLE OF CONTENTS*
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Page
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ARTICLE 1. DEFINITIONS
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1
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SECTION 1.01. Definitions
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1
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ARTICLE 2. DEBT SECURITY FORMS
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7
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SECTION 2.01. Forms Generally
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7
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SECTION 2.02. Forms of Debt Securities
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7
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SECTION 2.03. Form of Trustee’s Certificate of Authentication
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7
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SECTION 2.04. Debt Securities in Global Form
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8
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ARTICLE 3. THE DEBT SECURITIES
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9
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SECTION 3.01. Title and Terms
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9
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SECTION 3.02. Denominations
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11
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SECTION 3.03. Payment of Principal and Interest
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11
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SECTION 3.04. Execution of Debt Securities
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11
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SECTION 3.05. Temporary Debt Securities
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12
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SECTION 3.06. Exchange and Registration of Transfer of Debt Securities
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12
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SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities
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13
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SECTION 3.08. Payment of Interest; Interest Rights Preserved
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14
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SECTION 3.09. Persons Deemed Owners
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15
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SECTION 3.10. Cancellation of Debt Securities Paid, etc.
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15
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SECTION 3.11. Currency and Manner of Payments
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15
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SECTION 3.12. CUSIP Numbers
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16
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ARTICLE 4. REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
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16
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SECTION 4.01. Applicability of Article
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16
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SECTION 4.02. Notice of Redemption; Selection of Debt Securities
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16
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SECTION 4.03. Payment of Debt Securities Called for Redemption
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18
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SECTION 4.04. Exclusion of Certain Debt Securities from Eligibility for Selection for
Redemption
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18
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SECTION 4.05. Provisions with Respect to any Sinking Funds
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18
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ARTICLE 5. PARTICULAR COVENANTS OF THE COMPANY
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19
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SECTION 5.01. Payment of Principal, Premium and Interest
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19
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SECTION 5.02. Offices for Notices and Payments, etc.
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19
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SECTION 5.03. Appointments to Fill Vacancies in Trustee’s Office
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20
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SECTION 5.04. Provisions as to Paying Agent
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20
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SECTION 5.05. Certificate to Trustee
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20
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SECTION 5.06. Waivers of Covenants
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21
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ARTICLE 6. HOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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21
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SECTION 6.01. Holders’ Lists
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21
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SECTION 6.02. Preservation and Disclosure of Lists
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21
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ii
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SECTION 6.03. Reports by the Company
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21
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SECTION 6.04. Reports by the Trustee
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22
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ARTICLE 7. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
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22
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SECTION 7.01. Events of Default
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22
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SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor
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24
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SECTION 7.03. Application of Moneys Collected by Trustee
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25
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SECTION 7.04. Proceedings by Holders
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26
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SECTION 7.05. Proceedings by Trustee
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26
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SECTION 7.06. Remedies Cumulative and Continuing
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26
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SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of
Holders
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26
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SECTION 7.08. Notice of Defaults
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27
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SECTION 7.09. Undertaking to Pay Costs
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27
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SECTION 7.10. Unconditional Right of Holders to Receive Principal, Premium and
Interest
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27
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ARTICLE 8. CONCERNING THE TRUSTEE
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27
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SECTION 8.01. Duties and Responsibilities of Trustee
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27
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SECTION 8.02. Reliance on Documents, Opinions, etc. Subject to the provisions of
Section 8.01
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28
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SECTION 8.03. No Responsibility for Recitals, etc.
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29
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SECTION 8.04. Trustee and Agents May Own Debt Securities
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29
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SECTION 8.05. Moneys to be Held in Trust
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30
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SECTION 8.06. Compensation, Indemnification and Expenses of Trustee
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30
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SECTION 8.07. Officers’ Certificate as Evidence
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30
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SECTION 8.08. Conflicting Interest of Trustee
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30
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SECTION 8.09. Eligibility of Trustee
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30
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SECTION 8.10. Resignation or Removal of Trustee
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31
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SECTION 8.11. Acceptance by Successor Trustee
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32
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SECTION 8.12. Succession by Merger, etc.
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32
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SECTION 8.13. Limitation on Rights of Trustee as a Creditor
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33
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SECTION 8.14. Authenticating Agents
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33
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SECTION 8.15. Trustee’s Application for Instructions from the Company
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34
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ARTICLE 9. CONCERNING THE HOLDERS
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35
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SECTION 9.01. Action by Holders
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35
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SECTION 9.02. Proof of Execution by Holders
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35
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SECTION 9.03. Company-Owned Debt Securities Disregarded
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35
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SECTION 9.04. Revocation of Consents; Future Holders Bound
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35
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ARTICLE 10. HOLDERS’ MEETINGS
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36
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SECTION 10.01. Purposes of Meetings
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36
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SECTION 10.02. Call of Meetings by Trustee
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36
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SECTION 10.03. Call of Meetings by Company or Holders
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36
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SECTION 10.04. Qualifications for Voting
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36
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iii
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SECTION 10.05. Regulations
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37
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SECTION 10.06. Voting
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37
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SECTION 10.07. No Delay of Rights by Meeting
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37
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ARTICLE 11. SUPPLEMENTAL INDENTURES
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38
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SECTION 11.01. Supplemental Indentures without Consent of Holders
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38
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SECTION 11.02. Supplemental Indentures with Consent of Holders
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39
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SECTION 11.03. Effect of Supplemental Indentures
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40
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SECTION 11.04. Notation on Debt Securities
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40
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SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished
Trustee
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40
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ARTICLE 12. CONSOLIDATION, MERGER, SALE AND CONVEYANCE
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40
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SECTION 12.01. Company May Consolidate, etc., on Certain Terms
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40
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SECTION 12.02. Successor Entity to be Substituted
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41
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SECTION 12.03. Opinion of Counsel to Be Given Trustee
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41
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ARTICLE 13. SATISFACTION, DISCHARGE AND DEFEASANCE OF INDENTURE
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41
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SECTION 13.01. Satisfaction, Discharge and Legal Defeasance of Debt Securities of any
Series
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41
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SECTION 13.02. Covenant Defeasance of Debt Securities of any Series
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42
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SECTION 13.03. Application of Trust Funds; Indemnification
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43
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SECTION 13.04. Return of Unclaimed Moneys
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43
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SECTION 13.05. Reinstatement
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44
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ARTICLE 14. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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44
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SECTION 14.01. Indenture and Debt Securities Solely Obligations of the Company
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44
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ARTICLE 15. MISCELLANEOUS PROVISIONS
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44
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SECTION 15.01. Provisions Binding on Successors of the Company
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44
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SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of Debt
Securities
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44
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SECTION 15.03. Addresses for Notices, etc.
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44
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SECTION 15.04. Governing Law; Waiver of Trial by Jury
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45
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SECTION 15.05. Evidence of Compliance with Conditions Precedent
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45
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SECTION 15.06. Legal Holidays
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46
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SECTION 15.07. Trust Indenture Act of 1939 to Control
|
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46
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SECTION 15.08. Table of Contents, Headings, etc.
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46
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SECTION 15.09. Determination of Principal Amount
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46
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SECTION 15.10. Execution in Counterparts
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46
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SECTION 15.11. Patriot Act
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46
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SECTION 15.12. Consent to Jurisdiction
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46
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*
|
This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
|
iv
THIS INDENTURE
, dated as of December 13, 2017, between United Insurance Holdings
Corp., a Delaware corporation (the “Company”), and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issue from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series as in this Indenture provided, up to such principal amount or amounts as may from time to time be authorized in or pursuant to one or more resolutions of
the Board of Directors.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or acceptance of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the respective Holders from time to time of the Debt Securities or of any series thereof as follows:
ARTICLE 1.
DEFINITIONS.
SECTION 1.01.
Definitions
. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended, shall have (except as herein otherwise expressly provided or unless the context otherwise requires) the meanings assigned to such
terms in said Trust Indenture Act of 1939 and in said Securities Act as in force at the date of the execution of this Indenture. All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States for domestic companies at the date of such computation. All references to such terms herein shall be both to the singular or the plural, as the context so requires. Unless the context otherwise requires,
any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this Indenture. The words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The words “including,” “includes” and “include” shall be deemed to be followed by the words “without
limitation.”
Affiliate:
The
term “Affiliate”, when used with respect to any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
Authenticating Agent:
The term “Authenticating Agent” means the agent of the Trustee, if any, which at the time shall be appointed and acting pursuant to
Section 8.14.
Board of Directors:
The term “Board of Directors” means the Board of Directors of the Company or any authorized committee of such Board designated by the
Board of Directors or the
by-laws
or the certificate of incorporation of the Company to act for such Board for purposes of this Indenture.
Board Resolution:
The term “Board
Resolution” means a copy of a resolution certified by a Vice President, the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day:
The term “Business Day”, when used with respect to any Place of Payment or any other particular location, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions or trust companies in that Place of Payment or other location are authorized or obligated by law, regulation or executive order to close.
Commission:
The term
“Commission” means the U.S. Securities and Exchange Commission.
Company:
“Company” means the party named as the “Company” in the first paragraph of this Indenture until a successor replaces it
pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The forgoing sentence shall likewise apply to any subsequent such successor or successors.
Company Request and Company Order:
The
terms “Company Request” and “Company Order” mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or a Vice President, and by its Treasurer, Secretary, Assistant Secretary or Assistant Treasurer, and delivered to the Trustee.
Conversion Date:
The term
“Conversion Date” has the meaning set forth in Section 3.11.
Corporate Trust Office:
The term “Corporate Trust Office” means the designated office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at Deutsche Bank Trust Company Americas, Trust and Agency Services, 60 Wall Street, 16th Floor, MS: NYC60-1630 New York, New York 10005, Attn: Corporates Team Deal Manager
– United Insurance Holdings Corp. Fax:
732-578-4635
with a copy to: Deutsche Bank Trust Company Americas, c/o Deutsche Bank National Trust Company, Trust and Agency
Services, 100 Plaza One, Mailstop JCY03-0801, Jersey City, New Jersey 07311, Attn: Corporates Team Deal Manager—United Insurance Holdings Corp Fax:
732-578-4635,
or
such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Company).
2
Currency Determination Agent:
The term “Currency Determination Agent” means the financial institution, if any, from time to time selected by the Company for
purposes of Section 3.11.
Debt Security or Debt Securities:
The terms “Debt Security” or “Debt Securities” means any notes, debentures or other indebtedness of any series, as the case
may be, issued by the Company from time to time, and authenticated and delivered under this Indenture.
Debt Security Register:
The term “Debt Security Register” has the meaning set forth in Section 3.06.
Debt Security Registrar:
The term
“Debt Security Registrar” has the meaning set forth in Section 3.06.
Depository:
The term “Depository” means, unless otherwise specified by the Company pursuant to Section 3.01, with respect to Debt Securities
of any series issuable or issued as a Global Debt Security, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
Dollar:
The term “Dollar” means the coin or currency of the United States of America which as of the time of payment is legal tender for the
payment of public and private debts.
Dollar Equivalent of the Foreign Currency:
The term “Dollar Equivalent of the Foreign Currency” has the meaning set forth in Section 3.11.
Event of Default:
The term “Event
of Default” has the meaning set forth in Section 7.01.
Foreign Currency:
The term “Foreign Currency” means a currency issued by the government of any country other than the United States of America.
Global Debt Security:
The term
“Global Debt Security” means a Debt Security issued in global form pursuant to Section 2.04 hereof to evidence all or part of a series of Debt Securities.
Government Obligations:
The term
“Government Obligations” means securities which are (i) direct obligations of the government which issued the currency in which the Debt Securities of a series are denominated or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the government which issued the currency in which the Debt Securities of such series are denominated, the payment of which obligations is unconditionally guaranteed by such government, and
which, in either case, are full faith and credit obligations of such government, are denominated in the currency in which the Debt Securities of such series are denominated and which are not callable or redeemable at the option of the issuer
thereof.
3
Holder:
The term “Holder” means any Person in whose name a Debt Security of any series is registered in the Debt Security Register applicable
to Debt Securities of such series.
Indenture:
The term “Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided
pursuant to the applicable provisions hereof, as so amended or supplemented.
Indexed Debt Security:
The term “Indexed Debt Security” means a Debt Security the terms of which provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount thereof at original issuance.
Interest:
The term “interest”, when used with respect to an Original Issue Discount Debt Security which by its terms bears interest only after
maturity, means interest payable after maturity; and, when used with respect to any Debt Security, shall be deemed to mean “interest, if any” on such Debt Security unless otherwise expressly stated or the context otherwise requires.
Interest Payment Date:
The term
“Interest Payment Date”, when used with respect to any series of Debt Securities, means the Stated Maturity of an installment of interest on such Debt Securities.
Market Exchange Rate:
The term
“Market Exchange Rate” has the meaning set forth in Section 3.11.
Officers’ Certificate:
The term “Officers’ Certificate”, when used with respect to the Company, means a certificate signed by its Chairman of the
Board, Vice Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer or a Vice President and by its Treasurer, Secretary, Assistant Secretary or Assistant Treasurer and delivered to the Trustee.
Each such certificate shall include the statements provided for in Section 15.05 to the extent required by the provisions of such Section.
Opinion of Counsel:
The term
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Company and who shall be reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for
in Sections 3.04, 11.05, 12.03, 13.01, 13.02 and 15.05 to the extent required by the provisions of such Sections.
Original Issue Discount Debt
Security:
The term “Original Issue Discount Debt Security” means any Debt Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 7.01.
4
Outstanding:
The term “Outstanding”, when used with respect to Debt Securities or Debt Securities of any series, means, as of the date of
determination, all such Debt Securities theretofore authenticated and delivered under this Indenture, except:
(i) such Debt Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) such Debt Securities for whose payment or
redemption money in the necessary amount and in the specified currency has been theretofore deposited with the Trustee or any paying agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall
act as its own paying agent) for the Holders of such Debt Securities,
provided
,
however
, that if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) such Debt Securities that have been paid pursuant to Section 3.07 or such Debt
Securities in exchange for or in lieu of which other such Debt Securities have been authenticated and delivered pursuant to this Indenture, unless proof satisfactory to the Trustee is presented that any such Debt Securities are held by Persons in
whose hands any of such Debt Securities are a legal, valid and binding obligation of the Company, and
(iv) such Debt Securities the
indebtedness in respect to which has been discharged in accordance with Section 13.01.
provided
,
however
, that in determining whether
the Holders of the requisite principal amount of such Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, such Debt Securities owned by the Company or any other obligor upon such
Debt Securities or any Affiliate of the Company or such other obligor (except in the case in which the Company or such other obligor or Affiliate owns all Debt Securities Outstanding under the Indenture, or all Outstanding Debt Securities of each
such series, as the case may be, without regard to this proviso) shall be disregarded and deemed not to be Outstanding in the manner set forth in Section 9.03.
Person:
The term “Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment:
The term “Place
of Payment”, when used with respect to the Debt Securities of any series, means the place or places where the principal of (premium, if any) and interest on the Debt Securities of that series are payable as specified in accordance with
Section 3.01.
Predecessor Debt Security:
The term “Predecessor Debt Security” of any particular Debt Security means every previous Debt Security evidencing all or a portion
of the same debt as that evidenced by such particular Debt Security, and for the purposes of this definition, any Debt Security authenticated and delivered under Section 3.07 in lieu of a mutilated, lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Debt Security.
Redemption Date:
The term “Redemption Date”, when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by
or pursuant to this Indenture.
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Redemption Price:
The term “Redemption Price”, when used with respect to any Debt Security to be redeemed, means the price specified in such Debt
Security at which it is to be redeemed pursuant to this Indenture.
Regular Record Date:
The term “Regular Record Date” for the interest payable on any Debt Security on any Interest Payment Date means the date specified in
such Debt Security as the “Regular Record Date” as contemplated by Section 3.01.
Responsible Officer:
The term “Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee assigned to the Corporate
Trust Administration unit (or any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture and, for the purposes of
Section 7.07, Section 7.08 and Section 8.01(c)(2), shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.
The term “Responsible Officer”, when used with respect to the Company, means the Chairman of the Board, Vice Chairman
of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Treasurer or Secretary, or any Vice President, Assistant Secretary or Assistant Treasurer, in each case, of the Company.
Special Record Date:
The term
“Special Record Date” for the payment of any Defaulted Interest (as defined in Section 3.08) means a date fixed by the Trustee pursuant to Section 3.08.
Stated Maturity:
The term “Stated
Maturity” when used with respect to any Debt Security or any installment of principal thereof or of interest thereon, means the date specified in such Debt Security as the fixed date on which the principal of such Debt Security, or such
installment of interest, is due and payable.
Subsidiary:
The term “Subsidiary” means any Person of which the Company, or the Company and one or more Subsidiaries, or any one or more
Subsidiaries, directly or indirectly, own more than 50% of the Voting Stock (measured by voting power rather than number of shares) and, in the case of an entity other than a corporation or a partnership, the Company, or the Company and one or more
Subsidiaries, or any one or more Subsidiaries, has the power, directly or indirectly, to direct the policies, management and affairs of such entity.
Trustee:
“Trustee” means the
party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and thereafter “Trustee” shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of that series.
Trust Indenture Act of 1939:
The term
“Trust Indenture Act of 1939” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was executed;
provided
,
however
, that in the event the Trust Indenture Act of 1939 is amended
after such date, “Trust Indenture Act of 1939” means to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
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Voting Stock:
The term “Voting Stock” means outstanding shares of capital stock or similar equity interests having under ordinary circumstances
voting power for the election of directors, managers or the substantial equivalent thereof whether at all times or only so long as no senior class of stock or similar equity interest has such voting power by reason of the happening of any
contingency.
ARTICLE 2.
DEBT SECURITY FORMS.
SECTION 2.01.
Forms Generally
. The Debt Securities of each series and the certificates of authentication thereon shall have such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture (the provisions of which shall be appropriate to reflect the terms of each series of Debt Securities, including the currency or
denomination, which may be Dollars or Foreign Currency), and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with the rules of any securities exchange, or
as may, consistently herewith, be determined by the officer executing such Debt Securities, as evidenced by his or her signing of such Debt Securities. Any portion of the text of any Debt Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Debt Security.
SECTION 2.02.
Forms of Debt Securities
. The Debt Securities
of each series shall be in such form or forms (including global form) as shall be established by or pursuant to a Board Resolution, and set forth in an Officers’ Certificate to the extent not established in a Board Resolution, or in one or more
indentures supplemental hereto.
Prior to the delivery of a Debt Security of any series in any such form to the Trustee for the Debt
Securities of such series for authentication, the Company shall deliver to the Trustee the following:
(a) The Board Resolution,
Officers’ Certificate or indenture supplemental hereto by or pursuant to which such form of Debt Security has been approved;
(b) An
Officers’ Certificate dated the date such Certificate is delivered to the Trustee stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Debt Securities in such form have been
complied with; and
(c) The Opinion of Counsel described in Section 3.04.
The definitive Debt Securities, if any, shall be printed, lithographed or engraved or produced by any combination of these methods or may be
produced in any other manner, all as determined by the officer executing such Debt Securities, as evidenced by his or her execution thereof.
SECTION 2.03.
Form of Trustee
’
s Certificate of Authentication
. The following is the form of the Certificate of
Authentication of the Trustee to be endorsed on all Debt Securities substantially as follows:
This is one of the Debt Securities of the
series designated therein issued under the within-mentioned Indenture.
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Deutsche Bank Trust Company Americas,
as Trustee
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By:
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Authorized Signatory
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SECTION 2.04.
Debt Securities in Global Form.
(a) If the Company shall establish
pursuant to Section 3.01 that the Debt Securities of a particular series are to be issued in whole or in part in the form of one or more Global Debt Securities, then the Company shall execute and the Trustee or its agent shall, in accordance
with Section 3.04 and the Company Order delivered to the Trustee or its agent thereunder, authenticate and deliver such Global Debt Security or Global Debt Securities, which (i) shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented by such Global Debt Security or Global Debt Securities, or such portion thereof as the Company shall specify in a Company Order, (ii) shall
be registered in the name of the Depository for such Global Debt Security or Global Debt Securities or its nominee, (iii) shall be delivered by the Trustee or its agent to the Depository or pursuant to the Depository’s instruction or held
by the Trustee as custodian for the Depository and (iv) shall bear a legend substantially to the following effect: “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITORY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO
THE NOMINEE OF THE DEPOSITORY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, THE NOMINEE OF THE DEPOSITORY, HAS AN INTEREST HEREIN.”
(b) Notwithstanding any other provision of this
Section 2.04 or of Section 3.06, and subject to the provisions of paragraph (c) below, unless the terms of a Global Debt Security expressly permit such Global Debt Security to be exchanged in whole or in part for individual
certificates representing Debt Securities, a Global Debt Security may be transferred, in whole but not in part and in the manner provided in Section 3.06, only to a nominee of the Depository for such Global Debt Security, or to the Depository,
or a successor Depository for such Global Debt Security selected or approved by the Company, or to a nominee of such successor Depository.
(c) (1) If at any time the Depository for a Global Debt Security notifies the Company that it is unwilling or unable to continue as Depository
for such Global Debt Security or if at any time the Depository for the Global Debt Securities for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depository with respect to such Global Debt Security. If a successor Depository for such Global Debt Security 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 or its agent, upon receipt of a Company Request for the authentication and delivery of certificates representing Debt Securities of such series in exchange for
such Global Debt Security, will authenticate and deliver, certificates representing Debt Securities of such series of like tenor and terms in an aggregate principal amount equal to the then outstanding principal amount of the Global Debt Security in
exchange for such Global Debt Security.
(2) The Company may at any time and in its sole discretion (subject, however, to the procedures of
the Depository) determine that the Debt Securities of any series or portion thereof issued or issuable in the form of one or more Global Debt Securities shall no longer be represented by such Global Debt Security or Global Debt Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Request for the authentication and delivery of certificates representing Debt Securities of such series in exchange in whole or in part for such Global Debt Security, will
authenticate and deliver certificates representing Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the then outstanding principal amount of such Global Debt Security or Global Debt
Securities representing such series or portion thereof in exchange for such Global Debt Security or Global Debt Securities.
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(3) If an Event of Default with respect to Debt Securities issued or issuable in the form of a
Global Debt Security has occurred and is continuing, the Depository for such Global Debt Security may surrender such Global Debt Security in exchange in whole or in part for certificates representing Debt Securities of such series of like tenor and
terms in definitive form on such terms as are acceptable to the Company and such Depository. Thereupon the Company shall execute, and the Trustee or its agent shall, upon receipt of a Company Request for the authentication and delivery of
certificates representing Debt Securities, authenticate and deliver, without a service charge, (A) to each Person specified by the Depository a certificate or certificates representing Debt Securities of the same series of like tenor and terms
and of any authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest as specified by the Depository in the Global Debt Security; and (B) to such
Depository a new Global Debt Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Debt Security and the aggregate principal amount of certificates
representing Debt Securities delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee or its agent will authenticate and deliver certificates representing Debt Securities in definitive registered form in authorized denominations for Debt Securities of the same series or any integral multiple
thereof. Upon the exchange of the entire principal amount of a Global Debt Security for certificates representing Debt Securities, such Global Debt Security shall be cancelled by the Trustee or its agent. Except as provided in the preceding
paragraph, certificates representing Debt Securities issued in exchange for a Global Debt Security pursuant to this Section shall be registered in such names and in such authorized denominations for Debt Securities of that series or any integral
multiple thereof, as the Depository shall instruct the Trustee or its agent. The Trustee or the Debt Security Registrar shall deliver at its Corporate Trust Office such certificates representing Debt Securities to the Holders in whose names such
Debt Securities are so registered.
ARTICLE 3.
THE DEBT SECURITIES.
SECTION 3.01.
Title and Terms
. The aggregate principal amount of Debt Securities which may be authenticated and delivered under
this Indenture is unlimited. The Debt Securities may be issued up to the aggregate principal amount of Debt Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series. All Debt Securities of each series issued under this Indenture shall in all respects
be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of the actual time or times of the authentication and delivery or maturity of the Debt Securities of such
series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate to the extent not established in a Board Resolution, or established in one or more indentures supplemental hereto, prior to the
issuance of Debt Securities of any series:
(a) the title of the Debt Securities of the series (which shall distinguish the Debt Securities
of the series from all other series of Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt Securities of the
series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of that series pursuant to this
Article Three, the second paragraph of Section 4.03, or Section 11.04);
(c) the date or dates (or the manner of calculation
thereof) on which the principal of the Debt Securities of the series is payable;
(d) the rate or rates (or the manner of calculation
thereof) at which the Debt Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date;
(e) the Place of Payment;
(f) the period or periods within which, the price or prices at which, the currency or currency units in which, and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;
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(g) the obligation, if any, of the Company to redeem or purchase Debt Securities of the series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices in the currency at which, the currency or currency units in which, and the terms and conditions
upon which Debt Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(h) the
denominations in which the Debt Securities of such series shall be issuable if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(i) if other than Dollars, the currencies in which payments of interest or principal of (and premium, if any, with respect to) the Debt
Securities of the series are to be made;
(j) if the interest on or principal of (or premium, if any, with respect to) the Debt Securities
of the series are to be payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than that in which such Debt Securities are payable, the period or periods within which, and the other terms and conditions upon
which, such election may be made, and the time and manner of determining the exchange rate between the currency in such Debt Securities are denominated or stated to be payable and the currency in which such Debt Securities or any of them are to be
so payable;
(k) whether the amount of payments of interest on or principal of (or premium, if any, with respect to) the Debt Securities of
such series may be determined with reference to an index, formula or other method (which index, formula or method or method may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;
(l) the extent to which any
Debt Securities will be issuable in permanent global form, the manner in which any payments on a permanent global Debt Security will be made, and the appointment of any Depository relating thereto;
(m) any deletions from, modifications of or additions to the Events of Default or covenants with respect to the Debt Securities of such series,
whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(n) if any of
the Debt Securities of such series are to be issuable upon the exercise of warrants, this shall be so established as well as the time, manner and place for such Debt Securities to be authenticated and delivered;
(o) the inapplicability of any of the provisions of Article Thirteen with respect to any series of Debt Securities;
(p) the terms of any right to convert the Debt Securities of such series into, or exchange the Debt Securities for, the Company’s common
stock or other securities or property or cash in lieu of the Company’s common stock or other securities or property, or any combination thereof; and
(q) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto.
Notwithstanding Section 3.01(b) and unless otherwise expressly provided with respect to a series of Debt Securities, the aggregate
principal amount of a series of Debt Securities may be increased and additional Debt Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
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If any of the terms of the series are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the
series.
SECTION 3.02.
Denominations.
The Debt Securities of each series shall be issuable in registered form without coupons
in such denominations as shall be specified as contemplated in Section 3.01. In the absence of any specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in minimum denominations of
$2,000 and any integral multiple of $1,000 in excess thereof, which may be in Dollars or any Foreign Currency.
SECTION 3.03.
Payment of Principal and Interest.
The principal of, premium, if any, and interest on the Debt Securities shall be payable at the office or agency of the Company designated for that purpose in the Place of Payment, as provided in
Section 5.02;
provided
,
however
, that, subject to the applicable procedures of the Depository, interest may be payable at the option of the Company by wire transfer or by check mailed to the address of the Person entitled thereto
as such address shall appear on the Debt Security Register on the Regular Record Date for such interest payment.
SECTION 3.04.
Execution of Debt Securities.
The Debt Securities shall be executed manually or by facsimile in the name and on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its President,
its Chief Operating Officer, its Chief Financial Officer, a Vice President or its Treasurer. Only such Debt Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, manually executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or become obligatory for any purpose. Such certificate by the Trustee upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In
case any officer of the Company who shall have executed any of the Debt Securities shall cease to be such officer before the Debt Securities so executed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such
Debt Securities nevertheless shall be valid and binding and may be authenticated and delivered or disposed of as though the Person who executed such Debt Securities had not ceased to be such officer of the Company; and any Debt Securities may be
executed on behalf of the Company by such Persons as, at the actual date of the execution of such Debt Security, shall be a proper officer of the Company, although at the date of such Debt Security or of the execution of this Indenture any such
Person was not such an officer.
At any time and from time to time after the execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series, properly created in accordance with Section 3.01 and executed by the Company, to the Trustee for authentication; and the Trustee shall authenticate and deliver such Debt Securities upon receipt of a
Company Order. In the event that any other Person performs the Trustee’s duties as Authenticating Agent pursuant to a duly executed agreement, the Company shall notify the Trustee in writing of the issuance of any Debt Securities hereunder,
such notice to be delivered in accordance with the provisions of Section 15.03 on the date such Debt Securities are delivered by the Company for authentication to such other Person.
Prior to any such authentication and delivery, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, in
addition to the Officers’ Certificates relating to the issuance of any series of Debt Securities pursuant to Sections 2.02, 3.01 (if required by that Section), and Section 15.05, Opinions of Counsel stating that:
(a) this Indenture has been duly qualified under the Trust Indenture Act of 1939;
(b) any such supplemental indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable 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);
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(c) all conditions precedent to the authentication and delivery of such Debt Securities set forth
in Section 2.02 and 3.01 of the Indenture have been complied with;
(d) the form and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture; and
(e) such Debt Securities have been duly authorized and executed on
behalf of the Company and, assuming due authentication and delivery by the Trustee, constitute valid and binding obligations of 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 are entitled to the benefits of this Indenture, equally and ratably with all other Outstanding Debt Securities, if any,
of such series.
The Trustee shall not be required to authenticate such Debt Securities if the issue thereof will adversely affect the
Trustee’s own rights, duties or immunities under the Debt Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or such action would expose the Trustee to personal liability to existing
Holders.
Unless otherwise provided in the form of Debt Security for any series, all Debt Securities shall be dated the date of their
authentication.
No Debt Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered hereunder.
SECTION 3.05.
Temporary Debt
Securities.
Pending the preparation of definitive Debt Securities of any series, the Company may execute, and upon receipt of the documents required by Sections 2.02, 3.01 and 3.04, together with a Company Order, the Trustee shall
authenticate and deliver, such temporary Debt Securities which may be printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denominations, substantially of the tenor of such definitive Debt Securities in lieu of
which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such temporary Debt Securities may determine, as evidenced by his or her execution of such temporary Debt Securities.
If temporary Debt Securities of any series are issued, the Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt Securities of any series, the temporary Debt Securities of such series shall be exchangeable for definitive Debt Securities of such series, upon surrender of the temporary Debt
Securities of such series at any office or agency maintained by the Company for such purposes as provided in Section 5.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any series,
the Company shall execute and the Trustee shall upon receipt of a Company Request for the authentication and delivery of certificates representing Debt Securities, authenticate and deliver in exchange therefor a like principal amount of definitive
Debt Securities of such series having the same interest rate and Stated Maturity and bearing interest from the same date of any authorized denominations. Until so exchanged the temporary Debt Securities of such series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt Securities of such series.
SECTION 3.06.
Exchange and
Registration of Transfer of Debt Securities.
Debt Securities may be exchanged for a like aggregate principal amount of Debt Securities of such series that are of other authorized denominations. Debt Securities to be exchanged shall be
surrendered at any office or agency to be maintained for such purpose by the Company, as provided in Section 5.02, and the Company shall execute and the Trustee shall, upon receipt of a Company Request for the authentication and delivery of
Debt Securities, authenticate and deliver in exchange therefor the Debt Security or Debt Securities of authorized denominations which the Debt Security Holder making the exchange shall be entitled to receive. Each agent of the Company appointed
pursuant to Section 5.02 as a person authorized to register and register transfer of Debt Securities is sometimes herein referred to as a “Debt Security Registrar.”
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The Company shall keep, at an office or agency of the Company maintained for such purpose, as
provided in Section 5.02, a register for each series of Debt Securities hereunder (the registers of all Debt Security Registrars being herein sometimes collectively referred to as the “Debt Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for the registration of Debt Securities and shall register the transfer of Debt Securities as provided in this Article Three. For avoidance of doubt, there shall only be one
Debt Security Register for each series of Debt Securities. At all reasonable times, such Debt Security Register shall be open for inspection by the Trustee and any Debt Security Registrar other than the Trustee. Upon due presentment for registration
of transfer of any Debt Security at any such office or agency, the Company shall execute and cause to be registered and the Trustee upon receipt of a Company Request for the authentication and delivery of Debt Securities, shall authenticate and
deliver in the name of the transferee or transferees a new Debt Security or Debt Securities of the same series of authorized denominations for an equal aggregate principal amount. Registration or registration of transfer of any Debt Security by any
Debt Security Registrar in the registry books maintained by such Debt Security Registrar, and delivery of such Debt Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Debt Security. The
Trustee is hereby appointed as Debt Security Registrar for each series of Debt Securities.
No Person shall at any time be appointed as or
act as a Debt Security Registrar unless such Person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations.
All Debt Securities presented to a Debt Security Registrar for registration of transfer shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Company and such Debt Security Registrar duly executed by the registered Holder or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Debt Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall
not be required to issue, exchange or register a transfer of (a) any Debt Securities of any series for a period of 15 days next preceding the delivery of a notice of redemption of Debt Securities of such series and ending at the close of
business on the day of the delivery of a notice of redemption of Debt Securities of such series so selected for redemption, or (b) any Debt Securities selected, called or being called for redemption except, in the case of any Debt Security to
be redeemed in part, the portion thereof not so to be redeemed.
All Debt Securities issued in exchange for or upon registration of
transfer of Debt Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered for such exchange or registration of transfer.
None of the Trustee, any agent of the Trustee, any paying agent or the Company will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global Debt Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
SECTION 3.07.
Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon a Company Request the Trustee shall authenticate and deliver, a new Debt Security, bearing a number, letter or other distinguishing mark not
contemporaneously Outstanding, in exchange and substitution for the mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost or stolen. In every case the applicant for a substituted Debt Security shall
furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft, of such Debt Security and of the ownership thereof.
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In the absence of notice to the Trustee or the Company that such Debt Security has been acquired
by a bona fide purchaser, the Trustee shall authenticate any such substituted Debt Security and deliver the same upon any Company Request. Upon the issuance of any substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Debt Security which has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substituted Debt Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to
the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and to the Trustee of the destruction, loss or theft
of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of this
Section 3.07 by virtue of the fact that any Debt Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities duly issued hereunder. All Debt Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities and shall preclude (to the extent permitted by law) any and all other rights or remedies with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 3.08.
Payment of Interest; Interest Rights
Preserved.
Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date, on any Debt Security, shall unless otherwise provided in such Debt Security be paid to the Person in whose name the Debt Security
(or one or more Predecessor Debt Securities) is registered at the close of business on the Regular Record Date for such interest.
Unless
otherwise stated in the form of Debt Security of a series, interest on the Debt Securities of any series shall be computed on the basis of a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names any such Debt Securities (or their respective Predecessor Debt Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Debt Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of such Debt Securities in the manner set forth in Section 15.03, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been given as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Debt Securities (or their respective Predecessor Debt Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any
Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debt Securities of that series may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Debt Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.09.
Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Debt Security is registered as the owner of such Debt Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.08) interest on, such Debt Security and for all other purposes
whatsoever whether or not such Debt Security be overdue, and neither the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.10.
Cancellation of Debt Securities Paid, etc.
All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer or delivered in satisfaction in whole or in part of any sinking fund obligation shall, if surrendered to the Company or any agent of the Trustee or the Company under this Indenture, be delivered to the Trustee
and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Company may at
any time deliver to the Trustee for cancellation any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated hereunder which the Company has not issued and sold, and all Debt Securities so delivered shall be promptly cancelled by the Trustee. The Trustee shall dispose of
cancelled Debt Securities in accordance with its customary procedures unless directed by a Company Order.
SECTION 3.11.
Currency
and Manner of Payments.
(a) With respect to Debt Securities denominated in Dollars or a Foreign Currency, the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph (c) of this Section 3.11 or as may be required by the applicable
procedures of the Depository, payment of principal of and premium, if any, on any Debt Securities will be made at the offices established pursuant to Section 5.02 by payment of wire transfer or delivery of a check in the currency in which the
Debt Security is denominated on the payment date against surrender of such Debt Security, and any interest on any Debt Security will be paid at such office by making a wire transfer or mailing a check in the currency in which the Debt Securities
were issued to the Person entitled thereto at the address of such Person appearing on the Debt Security Register.
(2) Payment of the
principal of and premium, if any, and interest on such Debt Security may also, subject to applicable laws and regulations and subject to surrender as aforesaid in the case of principal and premium, if any, be made at such other place or places as
may be designated by the Company by any appropriate method.
(b) Not later than the fourth Business Day after the Regular Record Date for
such Interest Payment Date, the Currency Determination Agent will deliver to the Company and the Trustee a written notice specifying, in the currency in which each series of the Debt Securities are denominated, the respective aggregate amounts of
principal of and premium, if any, and interest on the Debt Securities to be made on such payment date, specifying the amounts so payable in respect of the Debt Securities. The failure of the Currency Determination Agent to deliver such notice shall
not relieve the Company from its obligation to make all payments with respect to any Debt Security when due.
(c) If the Foreign Currency
in which any of the Debt Securities are denominated ceases to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community,
then with respect to each date for the payment of Foreign Currency occurring after the last date on which the Foreign Currency was so used (the “Conversion Date”), the Dollar shall be the currency of payment for use on each such Interest
Payment Date. The Dollar amount to be paid by the Company to the Trustee and by the Trustee or any paying agent to the Holder of such Debt Securities with respect to such payment date shall be the Dollar Equivalent of the Foreign Currency as
determined by the Currency Determination Agent in the manner provided in paragraph (d) below.
(d) The “Dollar Equivalent of the
Foreign Currency” shall be determined by the Currency Determination Agent by converting the specified Foreign Currency into Dollars at the Market Exchange Rate as of the Conversion Date.
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(e) The “Market Exchange Rate” shall mean, for any currency, the highest firm bid
quotation for U.S. dollars received by the Currency Determination Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date (or, if no such rate is quoted on such date, the last
date on which such rate was quoted, or under the circumstances described in the foregoing paragraph (c), on the Conversion Date), from three recognized foreign exchange dealers in the City of New York selected by the Currency Determination
Agent and approved by the Company (one of which may be the Currency Determination Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of such currency payable on such payment in respect of all
Notes denominated in such currency.
(f) All decisions and determinations of the Currency Determination Agent regarding the Dollar
Equivalent of the Foreign Currency and the Market Exchange Rate shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company and all Holders of the Debt
Securities. In the event that the Foreign Currency ceases to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, the
Company, after learning thereof, will promptly give notice thereof to the Trustee (and the Trustee will promptly thereafter give notice in the manner provided in Section 15.03 to the Holders) specifying the Conversion Date.
(g) The Trustee shall be fully justified and protected in relying on and acting upon the information so received by it from the Company or the
Currency Determination Agent and shall not otherwise have any duty or obligation to determine such information independently. If the principal of (and premium, if any) and interest on any Debt Securities is payable in a Foreign Currency and such
Foreign Currency is not available for payment due to the imposition of exchange controls or other circumstances beyond the control of the Company, then the Company shall be entitled to satisfy its obligations to Holders under this Indenture by
making such payment in Dollars on the basis of the Market Exchange Rate for such Foreign Currency on the latest date for which such rate was established on or before the date on which payment is due. Any payment made pursuant to this
Section 3.11 in Dollars where the required payment is in a Foreign Currency shall not constitute a default or Event of Default under this Indenture.
SECTION 3.12.
CUSIP Numbers
. The Company in issuing the Debt Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Debt Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Debt Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any changes in the “CUSIP” numbers.
ARTICLE 4.
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.
SECTION 4.01.
Applicability of Article.
The Company may reserve the right to redeem and pay before Stated Maturity all or any part
of the Debt Securities of any series, either by optional redemption, sinking fund (mandatory or optional) or otherwise, by provision therefor in the form of Debt Security for such series on such terms as are specified in such form or the Board
Resolution or Officers’ Certificate delivered pursuant to Section 3.01 or the indenture supplemental hereto as provided in Section 3.01 with respect to Debt Securities of such series. Redemption of Debt Securities of any series shall
be made in accordance with the terms of such Debt Securities and, to the extent that this Article does not conflict with such terms, in accordance with this Article.
SECTION 4.02.
Notice of Redemption; Selection of Debt Securities.
In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of a series of Debt Securities pursuant to Section 4.01, the Company shall fix a date for redemption and the Company, or, at the Company’s request, the Trustee in the name of and at the expense of the
Company, shall mail a notice of such redemption at least 10 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities so to be redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register,
provided
,
however
, that the Company shall have delivered to the Trustee, at least 15 days prior to the Redemption Date (or such shorter period as may be acceptable to the Trustee), an Officers’
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the next succeeding paragraph. Such mailing shall be
16
by first class mail or electronic mail;
provided
,
however
, that so long as the Debt Securities of such series are represented by one or more Global Debt Securities, such notice
shall be given in accordance with the procedures of the Depository therefor. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the Holder of any Debt Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security.
Notice of redemption shall be prepared by and given in the name of the Company and shall specify the Debt Securities to be redeemed (including
CUSIP, ISIN or other Common Code number), the date fixed for redemption, the Redemption Price at which Debt Securities of any series are to be redeemed, or if not then ascertainable, the manner of calculation thereof, the place of payment (which
shall be at the offices or agencies to be maintained by the Company pursuant to Section 5.02), that payment of the Redemption Price will be made upon presentation and surrender of such Debt Securities, that interest accrued to the date fixed
for redemption will be paid as specified in said notice, that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue, and the Section of this Indenture or the paragraph or section of the Debt
Securities pursuant to which Debt Securities will be redeemed. In case less than all Debt Securities of any series are to be redeemed, the notice of redemption shall also identify the particular Debt Securities to be redeemed as a whole or in part
and shall state that the redemption is for the sinking fund, if such is the case. In case any Debt 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 Debt Security, in case of definitive Debt Securities, a new Debt Security or Debt Securities of such series in aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Holder.
If Debt Securities of any series are to be redeemed, the Company shall give the
Trustee notice, at least 15 days (or such shorter period acceptable to the Trustee) in advance of the date fixed for redemption, as to the aggregate principal amount of Debt Securities to be redeemed and as to the date fixed for redemption.
Debt Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Debt Securities of such series or any multiple thereof. Thereupon the Trustee shall select, on a by lot basis to the extent practicable, or, if a
by lot basis is not practicable for any reason, pro rata or in such other manner as the Trustee shall deem fair and appropriate, and in any case in accordance with the applicable procedures of the Depository unless otherwise required by law or
an applicable stock exchange, the Debt Securities or portions thereof to be redeemed, and shall as promptly as practicable notify the Company of the Debt Securities or portions thereof so selected;
provided
,
however
, if the Debt
Securities of such series are represented by one or more Global Debt Securities, interests in such Debt Securities shall be selected for redemption by the Depository therefor in accordance with its customary procedures and the Trustee shall have no
responsibilities with respect to such selection. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Debt Securities of any series shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Security which has been or is to be redeemed. In the case of any redemption of Debt Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
On or prior to the date fixed for redemption specified in the notice of redemption given as provided in this Section 4.02, the Company
will deposit with the Trustee or with the paying agent an amount of money in the currency in which the Debt Securities of such series are payable sufficient to redeem on the date fixed for redemption all the Debt Securities so called for redemption
at the appropriate Redemption Price, together with accrued interest to the date fixed for redemption.
The Trustee shall not deliver any
notice of redemption of any series of Debt Securities during the continuation of any default in payment of interest on any series of Debt Securities when due or of any Event of Default, except that where notice of redemption with respect to any
series of Debt Securities shall have been delivered prior to the occurrence of such default or Event of Default, the Trustee shall redeem such Debt Securities provided funds are deposited with it for such purpose.
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SECTION 4.03.
Payment of Debt Securities Called for Redemption.
If notice of
redemption has been given as herein provided, the Debt Securities or portions of Debt Securities with respect to which such notice has been given 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 the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Debt Securities or portions thereof at the Redemption Price, together with
interest accrued to said date) interest on the Debt Securities or portions of Debt Securities so called for redemption shall cease to accrue, and such Debt Securities and portions of Debt Securities shall be deemed not to be Outstanding hereunder
and shall not be entitled to any benefit under this Indenture except to receive payment of the Redemption Price, together with accrued interest to the date fixed for redemption. On presentation and surrender of such Debt Securities at the place of
payment in said notice specified, the said Debt 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 the date fixed for redemption;
provided
,
however
, that any installments of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders of such Debt Securities, or one or more previous Debt Securities evidencing all or a portion
of the same debt as that evidenced by such particular Debt Securities, registered as such on the relevant record dates according to their terms and the provisions of Section 3.08.
In the case of definitive Debt Securities, upon presentation and surrender of any Debt Security redeemed in part only, with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing, the Company shall
execute and the Trustee shall, upon receipt of a Company Request for the authentication and delivery of Debt Securities, authenticate and deliver to the Holder thereof, at the expense of the Company, a new Debt Security or Debt Securities of the
same series having the same interest rate and Stated Maturity and bearing interest from the same date, of any authorized denominations as requested by such Holder, in aggregate principal amount equal to the unredeemed portion of the Debt Security so
presented and surrendered.
SECTION 4.04.
Exclusion of Certain Debt Securities from Eligibility for Selection for Redemption.
Debt 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 a Responsible Officer of the Company and delivered to the Trustee at least
15 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
SECTION 4.05.
Provisions with Respect to any Sinking Funds.
Unless the form or terms of any series of Debt Securities shall
provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect to such series of Debt Securities in cash, the Company may at its option (a) deliver to the Trustee for cancellation any Debt Securities of
such series theretofore acquired by the Company, or (b) receive credit for any Debt Securities of such series (not previously so credited) acquired by the Company and theretofore delivered to the Trustee for cancellation or redeemed pursuant to
provisions for an optional redemption or optional sinking fund redemption, then Debt Securities so delivered or credited shall be credited at the applicable sinking fund Redemption Price with respect to the Debt Securities of such series.
On or before the 45th day next preceding each sinking fund Redemption Date, the Company will deliver to the Trustee a certificate signed
by the Chief Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer of the Company specifying (i) the portion of the mandatory sinking fund payment to be satisfied by deposit of cash in the currency in which the Debt
Securities of such series are payable, by delivery of Debt Securities theretofore purchased or otherwise acquired by the Company (which Debt Securities shall accompany such certificate) and by credit for Debt Securities acquired by the Company and
theretofore delivered to the Trustee for cancellation or redeemed by the Company pursuant to provisions for optional redemption or optional sinking fund redemption and stating that the credit to be applied has not theretofore been so applied and the
basis for such credit and (ii) whether the Company intends to exercise its right, if any, to make an optional sinking fund payment, and, if so, the amount thereof. Such certificate shall also state that no Event of Default has occurred and is
continuing. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In case of the failure of
the Company on or before the 45th day next preceding each sinking fund Redemption Date to
18
deliver such certificate (or to deliver the Debt Securities specified in this paragraph), the sinking fund payment due on the next succeeding sinking fund payment date shall be paid entirely in
cash (in the currency described above) and shall be sufficient to redeem the principal amount of Debt Securities as a mandatory sinking fund payment, without the option to deliver or credit Debt Securities as provided in the first paragraph of this
Section 4.05 and without the right to make an optional sinking fund payment as provided herein.
If the sinking fund payment or
payments (mandatory or optional) with respect to any series of Debt Securities made in cash (in the currency described above) shall exceed the minimum authorized denomination set forth in an Officers’ Certificate pursuant to Section 3.01
or the equivalent in the currency in which the Debt Securities of such series are payable (or a lesser sum if the Company shall so request), unless otherwise provided by the terms of such series of Debt Securities, said cash shall be applied by the
Trustee on the sinking fund Redemption Date with respect to Debt Securities of such series at the applicable sinking fund Redemption Price with respect to Debt Securities of such series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 4.03. The Trustee shall select, in the manner provided in Section 4.02, for redemption on such sinking fund Redemption Date a sufficient principal amount of Debt Securities of such series to
utilize said cash and shall thereupon cause notice of redemption of the Debt Securities of such series for the sinking fund to be given in the manner provided in Section 4.02 (and with the effect provided in Section 4.03) for the
redemption of Debt Securities in part at the option of the Company. Debt Securities of any series which are identified by registration and certificate number in an Officers’ Certificate at least 45 days prior to the sinking fund Redemption
Date as being beneficially owned by, and not pledged or hypothecated by, the Company or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be excluded from Debt Securities
of such series eligible for selection for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Debt Securities of such series shall be added to the next cash sinking fund payment with respect to Debt
Securities of such series received by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 4.05. Any and all sinking fund moneys with respect to Debt Securities of any series held by
the Trustee at the maturity of Debt Securities of such series, and not held for the payment or redemption of particular Debt Securities of such series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Debt Securities of such series at maturity.
The Trustee shall not
convert any currency in which the Debt Securities of such series are payable for the purposes of such sinking fund application unless a Company Request is made, and any such conversion agreed to by the Trustee (but without obligation to do so) in
response to such request shall be for the account and at the expense of the Company and shall not affect the Company’s obligation to pay the Holders in the currency to which such Holder is entitled.
On or before each sinking fund Redemption Date provided with respect to Debt Securities of any series, the Company shall pay to the Trustee in
cash in the currency described above a sum equal to all accrued interest, if any, to the date fixed for redemption on Debt Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 4.05.
ARTICLE 5.
PARTICULAR
COVENANTS OF THE COMPANY.
SECTION 5.01.
Payment of Principal, Premium and Interest.
The Company will duly and punctually
pay or cause to be paid (in the currency in which the Debt Securities of such series are payable) the principal of and premium, if any, and interest on each of the Debt Securities at the place (subject to Section 3.03), at the respective times
and in the manner provided in each series of Debt Securities and in this Indenture. Where payments are being made to the Trustee or the paying agent, such Trustee or paying agent must receive funds in U.S. Dollars for any payment no later than
11:00 a.m. New York City time on the Business Day that is the due date of the principal of and premium, if any, and interest on each of the Debt Securities.
SECTION 5.02.
Offices for Notices and Payments, etc.
(a) So long as the Debt Securities of any series remain Outstanding, the
Company will maintain at the Place of Payment, an office or agency where the Debt Securities may be presented for payment, an office or agency where the Debt Securities may be presented for registration of transfer and for exchange as provided in
this Indenture, and an office or agency where notices and
19
demands to or upon the Company in respect of the Debt Securities or of this Indenture may be served and shall give the Trustee written notice thereof and any changes in the location thereof. In
case the Company shall at any time fail to maintain any such office or agency, or shall fail to give notice to the Trustee of any change in the location thereof, presentation and demand may be made and notice may be served in respect of the Debt
Securities or of this Indenture at said office of the Trustee. The Company hereby appoints the Trustee as its agent for all of the foregoing purposes with respect to the Debt Securities of each series.
(b) In addition to the office or agency maintained by the Company pursuant to Section 5.02(a), the Company may from time to time designate
one or more other offices or agencies where the Debt Securities may be presented for payment and presented for registration of transfer and for exchange in the manner provided in this Indenture, and the Company may from time to time rescind such
designations, as the Company may deem desirable or expedient;
provided
,
however
, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain such office and agency at the Place of
Payment, for the purposes abovementioned. The Company will give to the Trustee prompt written notice of (i) any such designation or rescission thereof, and (ii) the location of any such office or agency outside the Place of Payment and of
any change of location thereof.
SECTION 5.03.
Appointments to Fill Vacancies in Trustee
’
s Office.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.04.
Provisions as to Paying Agent.
(a) (1) Whenever the Company shall have one or more paying agents for any series
of Debt Securities other than the Trustee, it will, on or before each due date of the principal of (and premium, if any) or interest on any Debt Securities of such series, deposit with a paying agent a sum sufficient to pay such amount becoming due,
such sum to be held as provided by the Trust Indenture Act of 1939, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
(2) The Company will cause each paying agent other than the Trustee to execute and deliver to the Trustee an instrument in which such paying
agent shall agree with the Trustee, subject to the provisions of this Section, that such paying agent will: (i) comply with the provisions of the Trust Indenture Act of 1939 applicable to it as a paying agent and (ii) during the
continuance of any default by the Company (or any other obligor upon any series of Debt Securities) in the making of any payment in respect of the Debt Securities of such series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such paying agent as such.
(b) If the Company shall act as its own paying agent, it will, on or prior to each
due date of the principal of and premium, if any, or interest on Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of such Debt Securities a sum sufficient to pay such principal and premium, if any,
or interest so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on such series of Debt Securities) to make any payment of the principal of and premium, if any, or
interest on the Debt Securities when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture with respect to any or all series of Debt Securities then Outstanding, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by the Company, or any paying agent hereunder, as required by this Section 5.04, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the agreement to hold sums in trust provided in this Section 5.04
is subject to Section 13.04.
SECTION 5.05.
Certificate to Trustee.
So long as the Debt Securities of any series remain
Outstanding, the Company will deliver to the Trustee on or before 120 days after the end of each fiscal year of the Company an Officers’ Certificate stating that such officers have reviewed the covenants of the Indenture with respect to
each Outstanding series of Debt Securities and, in the course of the performance by the signers of their duties as officers of the Company, they would normally have knowledge of any default by the Company in the performance or fulfillment or
observance of any covenants or agreements contained herein during the preceding fiscal year, stating
20
whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. The Officers’ Certificate need not
comply with Section 15.05. One of the signatories to this Officers’ Certificate shall be the Company’s principal executive officer, principal financial officer or principal accounting officer.
SECTION 5.06.
Waivers of Covenants.
Anything in this Indenture to the contrary notwithstanding, the Company may fail or omit, in
respect of any series of Debt Securities, and in any particular instance, to comply with a covenant, agreement or condition contained in Section 5.05 (unless required to be complied with pursuant to Section 314(a)(4) of the Trust Indenture
Act of 1939), or with any additional covenant, agreement or condition contained in a Board Resolution or Officers’ Certificate establishing such series of Debt Securities, any indenture supplemental hereto applicable to such series or any Debt
Security of such series (unless such Board Resolution, Officers’ Certificate, or supplemental indenture provides otherwise) if the Company shall have obtained and filed with the Trustee before or after the time for such compliance the consent
in writing of the Holders of more than 50% in aggregate principal amount of the Debt Securities of the series affected by such waiver at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such
covenant or condition, but no such waiver shall extend to or affect any obligation not expressly waived nor impair any right consequent thereon and, until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE 6.
HOLDERS’ LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01.
Holders
’
Lists
. The Company covenants and agrees that it will furnish or cause to be furnished to
the Trustee, not more than 15 days after each Regular Record Date with respect to the Debt Securities of any series, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Debt Securities of such series as of a date not more than 15 days prior to the time such information is furnished;
provided
,
however
, that no such list with respect to any particular series of Debt Securities need be furnished at any such time if the Trustee is in possession thereof by reason of its acting as the Debt Security Registrar for such series designated
under Section 3.06 or otherwise.
SECTION 6.02.
Preservation and Disclosure of Lists
. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Debt Securities contained in the most recent list furnished to it as provided in Section 6.01 or received by the
Trustee in the capacity of the Debt Security Registrar (if so acting) under Section 3.06. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Debt Securities of
any series or of all Debt Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act of 1939.
(c) Every Holder of Debt Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act of 1939.
SECTION 6.03.
Reports by the Company
. The Company agrees to file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act of 1939 at the times and in the manner provided pursuant to such Act;
provided
that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed with the Trustee within 15 days after the same is so required to be filed with
the Commission;
provided
,
further
, that any such information, documents or reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system or any successor thereto shall be deemed
to be filed with the Trustee;
provided
that the Trustee shall have no responsibility whatsoever to determine whether such filing has occurred. Delivery of
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such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
SECTION 6.04.
Reports by the Trustee
. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the times and in the manner provided pursuant thereto. The interval between transmissions of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the Trust Indenture Act of 1939. If the Trust Indenture Act of 1939 does not specify the date on which a report is due, such report shall be due on July 15 of each year following the first issuance of Debt
Securities and shall be as of a date not more than 60 days prior thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon which Debt Securities of any series are listed, with the Commission and with the Company. The Company will notify the Trustee when the Debt Securities of any series are
listed on any stock exchange and of any delisting thereof.
ARTICLE 7.
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT.
SECTION 7.01.
Events of Default
. “Event of Default”, with respect to any series of Debt Securities, wherever used
herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless such event is either inapplicable to such series or it is specifically deleted or modified in the Board Resolution, Officers’ Certificate or supplemental indenture under
which such series of Debt Securities is issued or in the form of Debt Security for such series:
(a) default in the payment of any
installment of interest upon any Debt Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of and premium, if any, on any Debt Security of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration of acceleration or otherwise;
(c) default in the payment or satisfaction
of any sinking fund payment or analogous obligation, if any, with respect to the Debt Securities of such series as and when the same shall become due and payable by the terms of the Debt Securities of such series, and continuance of such default for
a period of 30 days;
(d) failure on the part of the Company duly to observe or perform any of the covenants, warranties or agreements
on the part of the Company in respect of the Debt Securities of such series in this Indenture (other than a covenant, warranty or agreement a default in whose performance or whose breach is specifically dealt with elsewhere in this Section)
continued for a period of 90 days after the date on which written notice of such failure, specifying such failure and requiring the same to be remedied, shall have been given to the Company by the Trustee, by registered mail, or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Debt Securities of such series;
(e) if any
event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness of the Company, whether such indebtedness now exists or is hereafter created or
incurred, happens and consists of default in the payment of more than $25,000,000 in principal amount of such indebtedness at the maturity thereof, after giving effect to any applicable grace period, or results in such Indebtedness in principal
amount in excess of $25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default is not cured or such acceleration is not rescinded or annulled within a period of
30 days after the date on which written notice of such failure, specifying such failure and requiring the same to be remedied, shall have been given to the Company by the Trustee, by registered mail, or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt Securities of such series;
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(f) the failure by the Company within 60 days to pay, bond or otherwise discharge any
uninsured judgment or court order for the payment of money in excess of $25,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith;
(g) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the Company under the Federal bankruptcy laws or any other similar applicable Federal or state law, and such decree or order shall have continued undischarged and unstayed for a period
of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee or other similar official in bankruptcy or insolvency of the Company or of all or
substantially all of its property, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days;
(h) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking an arrangement or a reorganization under the Federal bankruptcy laws or any other similar applicable Federal or state law, or shall consent to the filing of any such petition, or
shall consent to the appointment of a receiver or liquidator or trustee or assignee or other similar official in bankruptcy or insolvency of it or of all or substantially all of its property, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they become due; or
(i) any other Event of Default provided in the
Board Resolution, Officers’ Certificate or the supplemental indenture under which such series of Debt Securities is issued or in the form of Debt Security for such series;
then and in each and every such case, so long as such Event of Default with respect to any series of Debt Securities for which there are Debt Securities
Outstanding occurs and is continuing (other than an Event of Default specified in clause (g) or (h) of this Section 7.01) and shall not have been remedied or waived to the extent permitted by the terms of this Indenture, unless the
principal of all of the Debt Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of such series, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the principal (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms
of that series) of all the Debt Securities of such series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or
in the Debt Securities of such series contained to the contrary notwithstanding. If an Event of Default specified in clause (g) or (h) of this Section 7.01 occurs and is continuing, then the principal amount of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereof as due and payable upon acceleration) and any accrued and unpaid interest on that series shall
immediately become due and payable without any declaration or other act on the part of the Trustee or any Holder. This provision, however, is subject to the condition that if, at any time after the principal of the Debt Securities of such series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay in the currency in which the Debt Securities of such series are payable all matured installments of interest upon all of the Debt Securities and the principal of and premium, if any, on any and all Debt Securities of such series which shall have
become due otherwise than by such declaration (with interest on overdue installments of interest to the extent that payment of such interest is enforceable under applicable law and on such principal and premium, if any, at the rate borne by the Debt
Securities of such series or as otherwise provided in the form of Debt Security for such series, to the date of such payment or deposit) and all amounts due to the Trustee under Section 8.06, or provision deemed by the Trustee to be adequate
shall have been made therefor, and any and all defaults under this Indenture, other than the nonpayment of principal of and accrued interest on Debt Securities of such series which shall have become due by such declaration, shall have been cured or
shall have been waived in accordance with Section 7.07—then and in every such case the Holders of at least a majority in aggregate principal amount of the Debt Securities of such series then Outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
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In case the Trustee or any Holders shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the
Holders shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceeding had been taken.
SECTION 7.02.
Payment of Debt Securities Upon Default; Suit Therefor
. The Company covenants that (a) in case default shall be
made in the payment of any installment of interest upon any Debt Security of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made
in the payment of the principal of and premium, if any, on any Debt Security of any series as and when the same shall have become due and payable, whether at maturity of the Debt Security or upon redemption or by declaration or otherwise or
(c) in case default shall be made in the making or satisfaction of any sinking fund payment or analogous obligation with respect to the Debt Securities of any series when the same becomes due by the terms of the Debt Securities of any series,
and such default shall have continued for a period of 30 days—then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of any such series, the whole amount that then shall have become due and
payable on any such Debt Securities for principal and premium, if any, or interest, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the rate borne by the Debt Securities of such series or as otherwise provided in the form of Debt Security of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred and advances made by the Trustee, except compensation or
advances arising, or expenses or liabilities incurred, as a result of the Trustee’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and
non-appealable
decision.
Until such demand is made by the Trustee, the Company may pay the principal of and premium, if any, and interest on the Debt
Securities of any series to the Persons entitled thereto, whether or not the principal of and premium, if any, and interest on the Debt Securities of such series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor on such Debt Securities and collect, in the manner provided by law out of the property of the Company or any other obligor on such Debt Securities wherever situated, the moneys
adjudged or decreed to be payable. If any Event of Default with respect to any series of Debt Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Debt
Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other obligor on the Debt Securities of any series under the Federal bankruptcy laws or any other applicable law, or in case a receiver or trustee shall have been appointed for the property
of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor upon the Debt Securities of any series, or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Debt Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 7.02, shall be entitled and empowered by intervention in such proceedings or otherwise, (a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the
Debt Securities of such series, and, in case of any judicial proceedings, to 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 and of the Holders
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of the Debt Securities of such series allowed in such judicial proceedings relative to the Company or any other obligor on such Debt Securities, its or their creditors, or its or their property,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of any Debt Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable proceedings, and (c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of
its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Debt Securities of such series to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred and advances made by the Trustee except compensation or advances arising, or expenses or liabilities incurred, as a result of the Trustee’s gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and
non-appealable
decision.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept, or adopt on behalf of any Holder any plan or reorganization, arrangement, adjustment or composition affecting the Debt Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder (except, as aforesaid, for the election of a trustee in bankruptcy or other Person performing similar functions) in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may be enforced by the
Trustee without the possession of any of such Debt Securities, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Debt Securities of such series in respect of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Debt Securities in respect to which such action was taken, and it shall not be necessary to make any Holders of such Debt Securities parties to any such
proceedings.
SECTION 7.03.
Application of Moneys Collected by Trustee
. Any moneys collected by the Trustee pursuant to
Section 7.02 and any other money or property distributed in respect of the Company’s obligations under this Indenture after an Event of Default shall be applied in the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the Debt Securities of such series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the Trustee, and any other amounts owing the Trustee under Section 8.06;
SECOND: In case the principal of the Debt Securities of such series shall not have become due and be unpaid, to the payment of interest on
such Debt Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by such Debt
Securities, such payments to be made ratable to the Persons entitled thereto;
THIRD: In case the principal of the Debt Securities of such
series shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Debt Securities for principal and premium, if any, and interest, with interest on the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by such Debt Securities; and in case such moneys shall be insufficient to pay in full the whole amounts so due and
unpaid upon such Debt Securities, then, to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any Debt Security of such series over any other such Debt Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest; and
25
FOURTH: To the payment of any surplus then remaining to the Company, its successors or assigns,
or to whomsoever may be lawfully entitled to receive the same.
SECTION 7.04.
Proceedings by Holders
. No Holder of any Debt
Security of any series shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law or in bankruptcy or otherwise upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Debt Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding (and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 7.07), it being understood and
intended, and being expressly covenanted by the taker and Holder of every Debt Security of every series with every other taker and Holder and the Trustee, that no one or more Holders of Debt Securities shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of such Debt Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Debt Securities.
SECTION 7.05.
Proceedings by Trustee
. In case of an Event of Default hereunder the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by
action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.06.
Remedies Cumulative and Continuing
. All
powers and remedies given by this Article Seven to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or power accruing
upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 7.04, every power and
remedy given by this Article Seven or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
SECTION 7.07.
Direction of Proceedings and Waiver of Defaults by Majority of Holders
. The Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of any series shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series by this Indenture;
provided
,
however
, that (subject to the provisions of Section 8.01) the Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine upon advice of counsel that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or proceeding so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of Holders of the Debt Securities of all series not joining in the giving of said directions, it being understood that (subject to Section 8.01) the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are duly prejudicial to such Holders. The Trustee may take any other action deemed proper by the Trustee not inconsistent with such direction. Subject to Section 7.01, the Holders of
a majority in aggregate principal amount of the Outstanding Debt Securities of any series may on behalf of the Holders of all the Debt
26
Securities of such series waive any past default or Event of Default hereunder and its consequences except a default in the payment of principal of or premium, if any, or interest on such Debt
Securities, or a default in the making of any sinking fund payment with respect to such Debt Securities. Upon any such waiver the Company, the Trustee and the Holders of such Debt Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default shall have been waived as permitted by this
Section 7.07, said default or Event of Default shall for all purposes of the Debt Securities and this Indenture be deemed to have been cured and to be not continuing.
This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act of 1939 and such
Sections 316(a)(1)(A) and 316(a)(1)(B) are hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 7.08.
Notice of Defaults
. Within 90 days after the occurrence of any default hereunder with respect to the Debt
Securities of any series, the Trustee shall transmit by first-class by mail, postage prepaid, or otherwise deliver, to all Holders of Debt Securities of such series, as their names and addresses appear in the Debt Security Register, notice of such
default hereunder known to the Responsible Officer of the Trustee, unless such default shall have been cured or waived;
provided
,
however
, that, except in the case of a default in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series or in the payment of any sinking fund installment with respect to Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Debt Securities of such series; and
provided
,
further
, that in the case of any default of the character specified in Section 7.01(d) with respect to Debt Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For
the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Debt Securities of such series.
SECTION 7.09.
Undertaking to Pay Costs
. In any suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act of 1939;
provided
that neither this Section nor the Trust Indenture Act of 1939 shall be deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Trustee, and any provision of the Trust Indenture Act of 1939 to such effect is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 7.10.
Unconditional Right of Holders to Receive Principal, Premium and Interest
. Notwithstanding any other provision in
this Indenture, the Holder of any Debt Security shall have the rights, which are absolute and unconditional, to receive payment of the principal of, premium, if any, and (subject to Section 3.08) interest on such Debt Security on the respective
Stated Maturities expressed in such Debt Security (or in the case of redemption or repayment, on the date for redemption or repayment, as the case may be) and to institute suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
ARTICLE 8.
CONCERNING THE TRUSTEE.
SECTION 8.01.
Duties and Responsibilities of Trustee
.
(a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
27
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this Subsection (c) shall not be construed to limit the effect of
Subsection (a) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Debt Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 8.01.
SECTION 8.02.
Reliance on Documents, Opinions, etc.
Subject to the provisions of Section 8.01:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note or other paper document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by Company Request or Company Order (unless otherwise evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and reliance thereon;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it
in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
28
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note, or other paper or document, unless requested in writing to do so by the Holders of not less than a majority in
principal amount of such Debt Securities then Outstanding;
provided
,
however
, that the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
and
provided
,
further
, 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 against such expenses or liabilities as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be liable or responsible for any misconduct, bad faith or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default or Event of Default unless written notice of
such default or Event of Default from the Company or any Holder is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Debt Securities and this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(j) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k) in no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(l) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded; and
(m) in no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, or the unavailability of the Federal Reserve Bank wire or
facsimile or other wire or communication facility; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the
circumstances.
SECTION 8.03.
No Responsibility for Recitals, etc
. The recitals contained herein and in the Debt Securities
(except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series. The Trustee represents that it is duly authorized to execute and deliver this Indenture. Neither the Trustee nor the Authenticating Agent shall be accountable for the use or
application by the Company of any Debt Securities or the proceeds of any Debt Securities authenticated and delivered by the Trustee hereunder.
SECTION 8.04.
Trustee and Agents May Own Debt Securities
. The Trustee, any paying agent, or any agent of the Trustee or the
Company under this Indenture, in its individual or any other capacity, may become the owner or pledgee of Debt Securities of any series with the same rights it would have if it were not Trustee or such agent and, subject to Sections 8.08 and
8.13, if operative, may otherwise deal with the Company and receive, collect, hold, and retain collections from the Company with the same rights it would have if it were not the Trustee or such agent.
29
SECTION 8.05.
Moneys to be Held in Trust
. Subject to the provisions of
Section 13.04, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any paying agent shall be under any liability for interest on, or to invest, any moneys received by it hereunder except such as it may agree with the Company to pay thereon. So long as no Event of Default with respect to the
Debt Securities of any series shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the receipt of a Company Order.
SECTION 8.06.
Compensation, Indemnification and Expenses of Trustee
. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as separately agreed to in writing with the Company, and
the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and any amounts paid by the Trustee to any Authenticating Agent pursuant to Section 8.14) except any such expense, disbursement or advance as may arise from its gross negligence or willful
misconduct, as determined by a court of competent jurisdiction in a final and
non-appealable
decision. The Company also covenants to indemnify the Trustee and its officers, directors, employees, agents and
Affiliates (collectively, the “Indemnitees”) for, and to hold each of them harmless against, any loss, damage, claims, liability or expense incurred without gross negligence or willful misconduct on the part of the Indemnitees, as
determined by a court of competent jurisdiction in a final and
non-appealable
decision, and arising out of or in connection with this Indenture, including the acceptance or administration of this trust, or the
performance of its duties hereunder, including the payment of all costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section 8.06 to compensate and indemnify the
Indemnitees and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Debt 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 Debt Securities. In addition to, but without prejudice to its other rights under this Indenture or available to the
Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 7.01(g) or Section 7.01(h), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
“Trustee” for purposes of this Section shall include any predecessor Trustee;
provided
,
however
, that the gross
negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
The provisions of
this Section shall survive the termination of this Indenture, the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee (acting in any capacity hereunder).
SECTION 8.07.
Officers
’
Certificate as Evidence
. Subject to the provisions of Section 8.01, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and established by an Officers’ Certificate conforming to the requirements of this Indenture delivered to the Trustee, and such Officers’ Certificate shall be full
warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.08.
Conflicting Interest of Trustee
. If the Trustee has or shall acquire any conflicting interest within the meaning of
the Trust Indenture Act of 1939, the Trustee shall either eliminate such conflicting interest or resign in the manner provided by, and subject to the provisions of, the Trust Indenture Act of 1939 and this Indenture.
SECTION 8.09.
Eligibility of Trustee
. There shall at all times be a Trustee with respect to each series of Debt Securities
hereunder which shall be a Person organized and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia authorized under such laws to exercise trust powers,
30
having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, state, territorial, or District of Columbia authority and willing to act as
Trustee hereunder. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee with respect to any series of Debt Securities shall cease to be eligible
in accordance with the provisions of this Section 8.09, such Trustee shall resign immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10.
Resignation or Removal of Trustee
. (a) The Trustee may at any time resign with respect to any series of Debt
Securities by giving written notice by first class mail or electronic mail of such resignation at least 45 days prior to the proposed resignation to the Company and to the Holders of such series of Debt Securities at their addresses as they shall
appear on the Debt Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee with respect to such series shall have been so appointed and have accepted appointment within 45 days after the
mailing of such notice of resignation to the Holders, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor trustee, or Holders of a majority in principal amount of
the Outstanding Debt Securities of such series may, subject to the provisions of Section 7.09, on behalf of such Holders and all others similarly situated, petition any such court for the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint such successor trustee.
(b) In
case at any time any of the following shall occur with respect to any series of Debt Securities—
(1) the Trustee shall fail to comply
with the provisions of Section 8.08 after written request therefor by the Company or by Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series, unless the Trustee’s duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust Indenture Act of 1939,
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.09 and shall fail to resign after written request therefor by the Company or by such Holders of Outstanding Debt Securities of such series, or
(3) the Trustee shall become incapable of acting with respect to such series of Debt Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to such series and appoint a successor trustee for such series by Company Order, one
copy of which Company Order shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.09, Holders of a majority in aggregate principal amount of Outstanding Debt Securities of
such series may, on behalf of such Holders and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove such Trustee and appoint such successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series may at any time remove the Trustee with respect to such series by delivering to the Trustee so removed, to the successor trustee so appointed and to
the Company the evidence provided for in Section 9.01 of the action in that regard taken by the Holders, and nominate a successor Trustee which shall be deemed appointed as successor Trustee unless within ten days after such nomination the
Company objects thereto, in which case the Trustee so removed or any Holder of a Debt Security or Debt Securities of such series, upon the terms and conditions and otherwise as in subsection (a) of this Section 8.10 provided, may petition
any court of competent jurisdiction for an appointment of a successor Trustee with respect to such series.
31
(d) Any resignation or removal of the Trustee with respect to all or any series of Debt
Securities and any appointment of a successor Trustee pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 8.11.
SECTION 8.11.
Acceptance by Successor Trustee
. Any successor Trustee appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective with respect to all or any series as
to which it is resigning as Trustee, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder with respect to all or any such
series, with like effect as if originally named as Trustee herein with respect to all or any such series; nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such successor Trustee all the rights and powers of the Trustee with respect to all or any such series so ceasing to act. Upon request of
any such successor Trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such Trustee with respect to all or any series as to which it is ceasing to act as Trustee, to secure any amounts, including indemnities, then due it pursuant to the provisions of
Section 8.06.
No successor Trustee shall accept appointment as provided in this Section 8.11 unless at the time of such
acceptance such successor Trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to all or any series of Debt Securities as provided in this
Section 8.11, the Company shall deliver notice of the succession of such Trustee hereunder to the Holders of Debt Securities of such series at their addresses as they shall appear on the Debt Security Register. If the Company fails to deliver
such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be delivered at the expense of the Company.
In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto which 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 Debt Securities of any series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
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.
SECTION 8.12.
Succession by Merger, etc
. Subject to Sections 8.08 and 8.09, any
Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case at the time any successor to the Trustee by merger, conversion or consolidation shall succeed to the trusts created by this Indenture
any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Debt Securities so authenticated; and in case at
that time any of the Debt Securities shall not have been authenticated, any such successor to the Trustee may authenticate such Debt Securities either in the name of the predecessor Trustee or such successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of the Trustee shall have.
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SECTION 8.13.
Limitation on Rights of Trustee as a Creditor
. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the Debt Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act of 1939 regarding the collection of claims against the Company (or any such other
obligor).
SECTION 8.14.
Authenticating Agents
. There may be an Authenticating Agent or Authenticating Agents appointed by the
Trustee from time to time with power to act on its behalf and subject to its direction in the authentication and delivery of any series of Debt Securities issued upon original issuance, exchange, transfer or redemption thereof as fully to all
intents and purposes as though such Authenticating Agent (or Authenticating Agents) had been expressly authorized to authenticate and deliver such Debt Securities, and Debt Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as though authenticated by the Trustee hereunder. For all purposes of this Indenture, the authentication and delivery of Debt Securities by any Authenticating Agent pursuant to this
Section 8.14 shall be deemed to be the authentication and delivery of such Debt Securities “by the Trustee”, and whenever this Indenture provides that “the Trustee shall authenticate and deliver” Debt Securities or that Debt
Securities “shall have been authenticated and delivered by the Trustee”, such authentication and delivery by any Authenticating Agent shall be deemed to be authentication and delivery by the Trustee. Any such Authenticating Agent shall at
all times be a Person organized and doing business under the laws of the United States of America or of any state or territory thereof or the District of Columbia, with a combined capital and surplus of at least $50,000,000 and authorized under such
laws to act as an authenticating agent, duly registered to act as such, if and to the extent required by applicable law and subject to supervision or examination by Federal or state authority. If such Person publishes reports of its condition at
least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 8.14 the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.14, or to be duly registered if and to the extent required by applicable law and
regulations, it shall resign immediately in the manner and with the effect herein specified in this Section 8.14.
Whenever reference
is made in this Indenture to the authentication and delivery of Debt Securities of any series by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the
Trustee by its Authenticating Agent appointed with respect to the Debt Securities of such series and a certificate of authentication executed on behalf of the Trustee by its Authenticating Agent appointed with respect to the Debt Securities of such
series.
Any Person into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any Person succeeding to the authenticating agency business of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor Person is otherwise eligible under this Section 8.14, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent or such successor Person.
In case at the time such successor to any such agency shall succeed to such agency any of the Debt Securities shall have been
authenticated but not delivered, any such successor to such Authenticating Agent may adopt the certificate of authentication of any predecessor Authenticating Agent and deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities shall not have been authenticated, any successor to any Authenticating Agent may authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of the successor Authenticating Agent; and in all
cases such certificate shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of the predecessor Authenticating Agent shall have such force;
provided
,
however
, that the
right to adopt the certificate of authentication of any predecessor Authenticating Agent or to authenticate Debt Securities in the name of any predecessor Authenticating Agent shall apply only to its successor or successors by merger, conversion or
consolidation.
Any Authenticating Agent may at any time resign as Authenticating Agent with respect to any series of Debt Securities by
giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent with respect to any series of Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible under this Section 8.14, the Trustee may, and shall,
upon request of the Company, promptly use its best efforts to appoint a successor Authenticating Agent.
33
Upon the appointment, at any time after the original issuance of any of the Debt Securities, of
any successor, additional or new Authenticating Agent, the Trustee shall give written notice of such appointment to the Company and shall at the expense of the Company mail or email notice of such appointment to all Holders of Debt Securities of
such series as the names and addresses of such Holders appear on the Debt Security Register.
Any successor Authenticating Agent with
respect to any series of Debt Securities upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as though originally named as an Authenticating Agent
herein with respect to such series. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 8.14 and duly registered if and to the extent required under applicable law and regulations.
Any Authenticating Agent by the acceptance of its appointment with respect to any series of Debt Securities shall be deemed to have agreed
with the Trustee that: (a) it will perform and carry out the duties of an Authenticating Agent as herein set forth with respect to such series, including the duties to authenticate and deliver Debt Securities when presented to it in connection
with exchanges, registrations of transfer or redemptions thereof; (b) it will keep and maintain, and furnish to the Trustee from time to time as requested by the Trustee appropriate records of all transactions carried out by it as
Authenticating Agent and will furnish the Trustee such other information and reports as the Trustee may reasonably require; (c) it is eligible for appointment as Authenticating Agent under this Section 8.14 and will notify the Trustee
promptly if it shall cease to be so qualified; and (d) it will indemnify the Trustee against any loss, liability or expense incurred by the Trustee and will defend any claim asserted against the Trustee by reason of any acts or failures to act
of the Authenticating Agent with respect to such series but it shall have no liability for any action taken by it at the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation and expenses for its services, and the
Trustee shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04, 8.06
(insofar as it pertains to indemnification), 3.09, 9.01 and 9.02 shall bind and inure to the benefit of each Authenticating Agent to the same extent that they bind and inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant to this Section 8.14, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein issued under the within-mentioned Indenture.
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Deutsche Bank Trust Company Americas,
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As Trustee
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By:
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as Authenticating Agent
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By:
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Authorized Officer
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SECTION 8.15.
Trustee
’
s Application for Instructions from the Company
.
Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such
action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
34
ARTICLE 9.
CONCERNING THE HOLDERS.
SECTION 9.01.
Action by Holders
. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage of such series have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders of such series in person or by agent or proxy appointed
in writing, or (b) by the record of the Holders of such series voting in favor thereof at any meeting of such Holders duly called and held in accordance with the provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders of such series. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments or so voting at any such meeting.
SECTION 9.02.
Proof of Execution by Holders
.
Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a Holder or such Holder’s agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities shall be provided by the Debt Security Register or by a certificate of the Debt Security Registrar with respect to a series of Debt
Securities.
The record of any Holders’ meeting shall be proved in the manner provided in Section 10.06.
SECTION 9.03.
Company-Owned Debt Securities Disregarded
. In determining whether the Holders of the requisite aggregate principal
amount of Debt Securities of any series have given any request, demand, authorization, direction, notice, consent, or waiver under this Indenture, Debt Securities of such series which are owned by the Company or any other obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor (except in the case in which the Company or such other obligor or Affiliate owns all Debt Securities Outstanding under the Indenture, or all Outstanding Debt Securities of each such
series, as the case may be, without regard to this proviso) shall be disregarded and deemed not to be Outstanding for the purpose of any such determinations;
provided
,
however
, that for the purposes of determining whether the Trustee
shall be protected in relying on any such request, demand, authorization, direction, notice, consent, or waiver only such Debt Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Debt Securities
so owned which have been pledged in good faith may be regarded as Outstanding notwithstanding this Section 9.03 if the pledgee shall establish to the satisfaction of the Trustee the right of the pledgee to act with respect to such Debt
Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers’ Certificate listing and identifying all Debt Securities of a series, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on such Debt Securities or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on such Debt Securities; and, subject to the provisions of Section 8.01, the Trustee shall be entitled
to accept such Officers’ Certificates as conclusive evidence of the facts therein set forth and of the fact that all such Debt Securities not listed therein are Outstanding for the purpose of any such determination.
SECTION 9.04.
Revocation of Consents; Future Holders Bound
. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any series specified in this Indenture in connection with such action, any Holder of a Debt Security
which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to or are bound by consents to such action, may, by filing written notice with the Trustee at the Corporate Trust Office and upon proof of
holding as provided in Section 9.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any Debt Security
35
shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and of any Debt Security issued on registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Debt Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Debt Securities specified in this
Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all of the Debt Securities affected by such action.
ARTICLE 10.
HOLDERS’ MEETINGS.
SECTION 10.01.
Purposes of Meetings
. A meeting of Holders of the Debt Securities of all or any series may be called at any time
and from time to time pursuant to the provisions of this Article Ten for any of the following purposes:
(a) to give any notice to the
Company or to the Trustee with respect to such series, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to
any of the provisions of Article Seven;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article
Eight;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 11.02;
or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the
Debt Securities of all or any series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 10.02.
Call of Meetings by Trustee
. The Trustee may at any time call a meeting of Holders of Debt Securities of all or any
series to take any action specified in Section 10.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders of Debt Securities of all or any series, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed or emailed by the Trustee to Holders of Debt Securities of each series that may be affected by the action proposed to be taken at such meeting at
their addresses as they shall appear on the Debt Security Register or in accordance with the applicable procedures of the Depository. Such notice shall be mailed or emailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting.
SECTION 10.03.
Call of Meetings by Company or Holders
. In case at any time the Company, pursuant to a resolution by
the Board of Directors, or the Holders of at least a majority in aggregate principal amount of the Debt Securities then Outstanding of each series that may be affected by the action proposed to be taken shall have requested the Trustee to call a
meeting of such Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed or emailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Holders may determine the time and place for such meeting and may call such meeting to take any action authorized in Section 10.01, by mailing notice thereof as provided in Section 10.02.
SECTION 10.04.
Qualifications for Voting
. The record date for purposes of determining the identity of Holders entitled to vote or
consent to any action by vote or consent authorized or permitted under this Indenture may be determined by the Company as provided for in Section 316(c) of the Trust Indenture Act of 1939. To be entitled to vote at any meeting of Holders of
Debt Securities a person shall (a) be a Holder of one or more Debt Securities of a series affected by the action proposed to be taken or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Debt
Securities. The rights of Holders of Debt Securities to have their votes counted shall be subject to the provision in the definition of “Outstanding” in Section 1.01. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Debt Securities shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
36
SECTION 10.05.
Regulations
. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Debt Securities, in regard to proof of the holding of Debt Securities and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulation, the holding of Debt Securities shall be proved in the manner specified in Section 9.02 and the appointment of any proxy shall be proved in the manner specified in said Section 9.02 or by having the
signature of the Person executing the proxy witnessed or guaranteed by any bank, broker or trust company.
The Trustee shall, by an
instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Debt Securities as provided in Section 10.03, in which case the Company or the Holders of Debt
Securities calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the
Debt Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.03, at any meeting each
Holder of a Debt Security of a series entitled to vote at such meeting or proxy shall be entitled to one vote for each $1,000 principal amount of Debt Securities of such series held or represented by such Holder;
provided
,
however
,
that no vote shall be cast or counted at any meeting in respect of any Debt Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote except as a
Holder of Debt Securities of such series or proxy therefor. Any meeting of Holders of Debt Securities duly called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time to time and the meeting may be held as so
adjourned without further notice.
At any meeting of Holders of Debt Securities, the presence of Persons holding or representing Debt
Securities in an aggregate principal amount sufficient to take action upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum; but, if less than quorum be present, the Persons holding or
representing a majority of the Debt Securities represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present.
SECTION 10.06.
Voting
. The vote upon any resolution submitted to any meeting of Holders of Debt Securities shall be by written
ballots on which shall be subscribed the signatures of the Holders of Debt Securities entitled to vote at such meeting or of their representatives by proxy, and the letter or letters, serial number or numbers or other distinguishing marks of the
Debt Securities held or represented by each such Holder. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders of Debt Securities shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing
that said notice was mailed or emailed as provided in Section 10.02. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any
record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 10.07.
No Delay of Rights by
Meeting
. Nothing in this Article Ten contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of Debt Securities of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Debt Securities under any of the provisions of this Indenture or of the Debt Securities.
37
ARTICLE 11.
SUPPLEMENTAL INDENTURES.
SECTION 11.01.
Supplemental Indentures without Consent of Holders
. The Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of
the following purposes:
(a) to evidence the succession of another Person to the Company, or successive successions, and the assumption by
the successor Person of the covenants, agreements and obligations of the Company pursuant to Articles Five and Twelve hereof;
(b) to add
to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Board of Directors shall consider to be for the protection of the Holders of Debt Securities of any or all series, and to make the occurrence, or
the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions a default or an Event of Default with respect to such series permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided
,
however
, that in respect of any such additional covenant, restriction or condition, such supplemental indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental indenture or to make any changes hereto that are required by law;
(d) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee;
(e) to make such other changes or provisions in regard to matters or questions arising under this Indenture as shall not adversely affect the
interests of the Holders of the Debt Securities and to make any change that would provide additional rights or benefits to the Holders of Debt Securities of any or all series or that does not adversely affect the legal rights under this Indenture of
any such Holder of Debt Securities;
(f) to evidence and provide for the acceptance of appointment by another Person as a successor Trustee
hereunder with respect to one or more series of Debt Securities 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 Section 8.11;
(g) to modify, amend or supplement this Indenture in such a manner as to permit the qualification of any
indenture supplemental hereto under the Trust Indenture Act of 1939 as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939;
(h) to provide for the issuance under this Indenture of Debt Securities in
coupon form (including Debt Securities registrable as to principal only) and to provide for exchangeability of such Debt Securities with Debt Securities of the same series issued hereunder in fully registered form and to make all appropriate changes
for such purpose;
(i) to provide for the issuance under this Indenture of Debt Securities in certificated form and to provide for
exchangeability of such Debt Securities with Debt Securities of the same series issued hereunder in certificated form and to make all appropriate changes for such purpose;
(j) to change or eliminate any of the provisions of this Indenture,
provided
,
however
, that any such change or elimination shall
become effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
38
(k) to comply with requirements of the Commission or any applicable law or regulation in order to
effect or maintain the qualification of this Indenture under the Trust Indenture Act, or conform this Indenture with any other mandatory provision of law or regulation; or
(l) to establish the form of the Debt Securities of a series and to provide for the issuance of Debt Securities of a series, as permitted by
Section 3.01, and to set forth the terms thereof.
The Trustee is hereby required to join with the Company in the execution of any
such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the Trustee without the
consent of the Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02.
Supplemental Indentures with Consent of Holders
. With the consent (evidenced as provided in Section 9.01) of
the Holders of greater than 50% in aggregate principal amount of the Outstanding Debt Securities of each series affected by such supplemental indenture (each such series voting as a single and separate class), by act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities of each series under this Indenture;
provided
,
however
,
that no such supplemental indenture shall, without the consent of the Holders of all of the Outstanding Debt Securities of each series affected, (a) change the Stated Maturity of the principal of, or any premium or installment of interest on,
any Debt Security of such series or make the principal thereof or interest or premium thereon payable in any coin or currency other than that provided in the Debt Securities of such series; (b) reduce the principal amount of, or the rate, or
modify the calculation of such rate, of interest on, or any premium payable upon the redemption of, any Debt Security of such series; (c) reduce the amount of the principal of any Original Issue Discount Debt Security that would be due and
payable upon a declaration of acceleration of the maturity thereof or the amount thereof provable in bankruptcy; (d) change the redemption provisions of any Debt Security in a manner adverse to the rights of the Holders thereof or adversely
affect the right of repayment at the option of any Holder of any Debt Security of such series; (e) change the Place of Payment or the coin or currency in which the principal of, any premium or interest on any Debt Security of such series is
payable; (f) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity of any Debt Security of such series or, in the case of redemption, on or after the Redemption Date or, in the case of repayment
at the option of any Holder, on or after the repayment date; (g) make any change that adversely affects the right to convert or exchange any Debt Security into or for shares of common stock or preferred stock or other securities, cash or
property in accordance with its terms, (h) amend Sections 5.02, 5.03 and 5.04 in any manner that is materially adverse to the rights of Holders of any series of Debt Securities or (i) reduce the percentage of Debt Securities of such
series, the Holders of which are required to: (i) consent to any supplemental indenture, (ii) rescind and annul a declaration that the Debt Securities of such series are due and payable as a result of the occurrence of an Event of Default,
(iii) waive any past Event of Default and its consequences, or (iv) waive compliance with the provisions of this Indenture or with any additional covenant, agreement or condition contained in a Board Resolution or Officers’
Certificate establishing such series of Debt Securities, any indenture supplemental hereto applicable to such series or any Debt Security of such series.
Upon the Trustee’s receipt of a Company Request, accompanied by a copy of a Board Resolution certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of Debt Securities as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
39
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 Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series.
Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 11.02, the Company shall deliver a notice, setting forth in general terms the substance of such supplemental indenture, to the
Holders of Debt Securities at their addresses as the same shall then appear in the Debt Security Register of the Company. Any failure of the Company to mail or email such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Holders of Debt Securities under this
Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 11.03.
Effect of Supplemental Indentures
. Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and
the Holders of Debt Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 11.04.
Notation on Debt
Securities
. Debt Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eleven may bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee upon receipt of a Company request for the authentication and delivery of such Debt Securities, and delivered in exchange for the Outstanding Debt
Securities of such series.
SECTION 11.05.
Evidence of Compliance of Supplemental Indenture to be Furnished Trustee
. The
Trustee, subject to the provisions of Sections 8.01 and 8.02, shall receive, and shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed
pursuant hereto complies with the requirements of this Article Eleven and is authorized and permitted by this Indenture.
ARTICLE 12.
CONSOLIDATION, MERGER, SALE AND CONVEYANCE.
SECTION 12.01.
Company May Consolidate, etc., on Certain Terms
. Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the Company with or into any other Person (whether or not Affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance or lease of all or substantially all of the property of the Company to any other Person (whether or not Affiliated with the Company) authorized to acquire and operate the same;
provided
,
however
, and the Company hereby covenants and agrees, that any such consolidation, merger, sale, conveyance or lease shall be upon the condition that (a) immediately after such consolidation, merger, sale, conveyance or lease the Person
(whether the Company or such other Person) formed by or surviving any such consolidation or merger, or to which such sale, conveyance or lease shall have been made, shall not be in default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or performed by the Company; (b) the Person (if other than the Company) formed by or surviving any such consolidation or merger or to which such sale, conveyance or lease shall have been
made, shall be a Person organized under the laws of the United States of America or any state thereof; and (c) the due and punctual payment of the principal of and premium, if any, and interest on all of the Debt Securities, according to their
tenor, and the due and punctual performance and observance of all of the covenants
40
and conditions of this Indenture to be performed or observed by the Company, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to
the Trustee by the Person (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the Person which shall have acquired or leased such property.
SECTION 12.02.
Successor Entity to be Substituted
. In case of any such consolidation, merger, sale, conveyance or lease and upon
the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium, if any, and interest on all of the
Debt Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to performed or observed by the Company, such successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and (except in the event of a conveyance by way of lease) the predecessor Person shall be relieved of any further obligation under this Indenture and the Debt Securities.
In case of any such consolidation, merger, sale, conveyance or lease such changes in phraseology and form (but not in substance) may be
made in the Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03.
Opinion of Counsel to Be Given
Trustee
. The Trustee, subject to Sections 8.01 and 8.02, shall receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale conveyance or lease and any such assumption complies with the provisions of this
Article Twelve and that all conditions precedent herein provided relating to such transactions have been complied with.
ARTICLE 13.
SATISFACTION, DISCHARGE AND DEFEASANCE OF INDENTURE.
SECTION 13.01.
Satisfaction, Discharge and Legal Defeasance of Debt Securities of any Series
. The Company shall be deemed to have
paid and discharged the entire indebtedness on all the Debt Securities of a series, the provisions of this Indenture (except as to (x) the rights of Holders of Debt Securities of such series to receive, from the money, in the currency required,
and Government Obligations deposited with the Trustee pursuant to Section 13.02(a) or the interest and principal received by the Trustee in respect of such Government Obligations, payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest on such Debt Securities on the Stated Maturities thereof or upon the Redemption Dates for Debt Securities required to be redeemed pursuant to any mandatory sinking fund or analogous
provisions relating to Debt Securities of that series or pursuant to any call for redemption relating to Debt Securities of that series, (y) the Company’s rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 5.01, 5.02, 5.03, 5.04, 8.06, 8.10, 8.11, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and immunities of the Trustee with respect to the Debt Securities of such series) as it relates to such Debt
Securities shall no longer be in effect, and the Trustee, at the expense of the Company, shall, upon Company Request, execute proper instruments acknowledging the same if:
(a) (1) all Debt Securities of such series therefor authenticated and delivered (other than (A) Debt Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.07 and (B) Debt Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Sections 13.03 and 13.04) have been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid in the currency required all other sums payable under this Indenture in respect of the Debt
Securities of such series, including all amounts owing to the Trustee under Section 8.06; and
(3) the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction of the entire indebtedness of all Debt Securities of any such series and the discharge of the
Indenture as it relates to such Debt Securities have been complied with; or
41
(b) (1) all such Debt Securities of such series not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense of the Company;
(2) the condition described in
paragraph (a) of Section 13.02 has been satisfied; and
(3) the conditions described in paragraphs (a)(2) and (a)(3) of this
Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in Section 13.02 and paragraph (a)(2) of this
Section 13.01 have been satisfied; and
(2) the Company has delivered to the Trustee an opinion of a nationally-recognized independent
tax counsel confirming that the Company shall have received from, or there shall have been published by, the United States Internal Revenue Service a ruling or since the date of this Indenture there has been a change in the applicable Federal income
tax law, in either case, to the effect that, and based thereon such opinion of counsel will confirm that, Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such
deposit and the defeasance contemplated by this paragraph (c) of this Section 13.01 and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and
defeasance had not occurred.
SECTION 13.02.
Covenant Defeasance of Debt Securities of any Series
. The provisions of this
Indenture (except as to (x) the rights of Holders of Debt Securities of any series to receive, from the money, in the currency required, and Government Obligations deposited with the Trustee pursuant to paragraph (a) below or the interest
and principal received by the Trustee in respect of such Government Obligations, payment of the principal of (and premium, if any) and any installment of principal of (and premium, if any) or interest on such Debt Securities on the Stated Maturities
thereof or upon the Redemption Dates for Debt Securities required to be redeemed pursuant to any mandatory sinking or analogous provisions relating to Debt Securities of that series or pursuant to any call for redemption relating to Debt Securities
of that series, (y) the Company’s rights and obligations with respect to such Debt Securities under Sections 3.06, 3.07, 5.01, 5.02, 5.03, 5.04, 6.01, Article Seven (other than subsection (d) of Section 7.01, to the extent
relating to the covenants defeased hereby), Sections 8.06, 8.10, 8.11, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and immunities of the Trustee with respect to the Debt Securities of such series) as it relates to Debt
Securities of any series shall no longer be in effect, and the Trustee, at the expense of the Company shall, upon Company Request, execute proper instruments acknowledging the same if:
(a) the Company has irrevocably (subject to Section 13.04) deposited or caused to be deposited with the Trustee as trust funds in trust
and specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Debt Securities of such series (1) Dollars or Foreign Currency, as applicable, in an amount, or (2) Government Obligations which through the
payment of interest and principal in respect thereof in accordance with their terms will provide on or before the due date of any payment in respect of such series of Debt Securities funds in an amount, or (3) a combination thereof, sufficient,
after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
which opinion need only be provided if Government Obligations shall have been deposited, to pay and discharge the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Debt
Securities of that series to the Stated Maturity of such principal or installment of principal or interest or to the Redemption Dates for Debt Securities required to be redeemed pursuant to any mandatory sinking fund or analogous provisions relating
to Debt Securities of that series or pursuant to any call for redemption relating to Debt Securities of that series on each day on which such payments are due and payable in accordance with the terms of the Indenture and such Debt Securities;
(b) no Event of Default or event which with notice or lapse of time would become an Event of Default shall have occurred and be continuing on
the date of the deposit referred to in paragraph (a) of this Section 13.02 or, insofar as an Event of Default described in paragraph (g) or (h) of Section 7.01 are concerned, at any time during the period ending on the
91st day after the date of such deposit or, if longer, ending on the day following the expiration date of the longest preference period applicable to the Company in respect of the deposit (and this condition will not be deemed satisfied until
the expiration of such period;
provided
,
however
, that should this condition fail to be satisfied on or before such 91
st
day, the Trustee shall promptly, upon satisfactory
receipt of evidence of such failure, return such deposit to the Company);
42
(c) the interest of the Holders in such deposit shall have been duly perfected under the
applicable provisions of the applicable Uniform Commercial Code;
(d) such defeasance shall not (A) cause the Trustee to have a
conflicting interest as defined in Section 8.08 or for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Company or (B) result in the trust arising from such deposit to constitute, unless it is qualified as,
a regulated investment company under the Investment Company Act of 1940, as amended;
(e) such defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound;
(f) the Company has delivered to the Trustee an opinion of counsel of a nationally-recognized independent tax counsel confirming that the
Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated by this Section 13.02 and will be subject to Federal income tax on
the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(g) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 13.03.
Application of Trust Funds; Indemnification
. (a) Subject to the provisions of Section 13.04, all money and Government Obligations deposited with the Trustee pursuant to Section 13.01 or 13.02 and all money received by the
Trustee in respect of Government Obligations deposited with the Trustee, shall be held in trust and applied by it, in accordance with the provisions of the Debt Securities and this Indenture, to the payment, either directly or through any paying
agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money and Government Obligations have been
deposited with or received by the Trustee as contemplated by Section 13.01 or 13.02.
(b) The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against Government Obligations deposited pursuant to Section 13.01 or 13.02 or the interest and principal received in respect of such obligations, other than any such tax,
fee or other charge payable by or on behalf of Holders. The Company shall be entitled to prompt notice of an assessment or the commencement of any proceeding for which indemnification may be sought hereunder and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such proceeding.
(c) The Trustee shall deliver or pay to the Company
from time to time upon Company Request any Government Obligations or money held by it as provided in Section 13.01 or 13.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, which opinion need only be provided if Government Obligations shall have been deposited, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for
which such obligations or money were deposited or received.
SECTION 13.04.
Return of Unclaimed Moneys
. Any moneys deposited
with or paid to the Trustee or any paying agent for payment of the principal of and premium, if any, or interest on Debt Securities and not applied but remaining unclaimed by the Holders of Debt Securities for two years after the date upon which the
principal of and premium, if any, or interest on such Debt Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such paying agent on Company Request; and the Holder of any of the Debt
Securities entitled to receive such payment shall thereafter look only to the Company for any payment thereof and all liability of the Trustee or such paying agent with respect to such moneys shall thereupon cease.
43
SECTION 13.05.
Reinstatement
. If the Trustee is unable to apply any money or
Government Obligations in accordance with Sections 13.01 or 13.02 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 Debt Securities shall be revived and reinstated as though no deposit had occurred pursuant to Sections 13.01 or 13.02 until such time as the Trustee is permitted to apply all such
money or Government Obligations in accordance with Sections 13.01 or 13.02;
provided
that, if the Company has made any payment of principal of or interest on the Debt Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Debt Securities to receive such payment from the money or Government Obligations held by the Trustee.
ARTICLE 14.
IMMUNITY OF
INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01.
Indenture and Debt Securities Solely Obligations of the Company
. No recourse under or upon any obligation, covenant
or agreement of this Indenture, any supplemental indenture, or of any Debt Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, organizer, stockholder, member, owner, officer, director,
manager or employee, as such, past, present or future, of the Company or any Subsidiary or of any predecessor or successor Person, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely obligations of the Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, any incorporator, organizer, stockholder, member, owner, officer, director, manager or employee, as such, of the Company or of any predecessor or successor Person, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture, or in any of the Debt Securities or implied thereby; and that any and all such personal liability, either at common law or in equity or
by constitution or statute of, and any and all such rights and claims against, every such incorporator, organizer, stockholder, member, owner, officer, director, manager or employee, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities or implied thereby, are hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Debt Securities.
ARTICLE 15.
MISCELLANEOUS PROVISIONS.
SECTION 15.01.
Provisions Binding on Successors of the Company
. All of the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02.
Indenture for Sole Benefit of Parties and Holders of Debt Securities
. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give or be construed to give to any Person, firm or corporation, other than the parties
hereto, any agent of the Trustee or the Company under this Indenture and the Holders of the Debt Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being, subject to the provisions of Articles Twelve and Fourteen, for the sole benefit of the parties hereto, any agent of the Trustee or the Company under this Indenture and the Holders of
the Debt Securities.
SECTION 15.03.
Addresses for Notices, etc
. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders of Debt Securities on the Company may be given or served by facsimile, electronic mail in pdf format or by being deposited, registered or certified mail postage prepaid,
in a post office letter box in the United States addressed (until another address is filed by the Company with the Trustee) to the Company, United Insurance Holdings Corp., 800 2nd Avenue S., St. Petersburg, Florida 33701, Telecopier
No.:727-895-8623,
Attention: B. Bradford Martz, with a copy to Sidley Austin LLP Telecopier No.:
312-853-7036
Attention: Brian J. Fahrney. Any notice, direction, request or demand by any Holder of a Debt Security or the Company to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee. Any notice,
44
report or other instrument required by any of the provisions of this Indenture to be given by the Trustee to the Holders of Debt Securities of any or all series shall be deemed to have been
sufficiently given, for all purposes, when mailed by first class mail, email or in accordance with the applicable procedures of the Depository. All notices must be in writing and in English.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured
e-mail
in pdf format, facsimile transmission or other similar unsecured electronic methods;
provided
,
however
, that (a) the party providing such electronic instructions or directions, subsequent
to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such originally executed instructions or directions shall be signed by an authorized representative of the
party providing such instructions or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions or directions
notwithstanding such instructions or directions conflict or are inconsistent with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party providing instructions or directions
by unsecured
e-mail,
facsimile transmission or other similar unsecured electronic methods, as aforesaid, agrees to assume all risks arising out of the use of such electronic methods to submit instructions and
directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or otherwise delivered to each Holder affected by such event, at its address as it appears in the Debt Security Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 15.04.
Governing Law; Waiver of Trial by Jury
. This Indenture and the Debt Securities shall for all purposes be construed
in accordance with and governed by the laws of the State of New York. EACH OF THE COMPANY, THE TRUSTEE, AND THE HOLDERS 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 INDENTURE, THE DEBT SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 15.05.
Evidence of Compliance with Conditions Precedent
. Upon any request to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent, if any (including any covenant, compliance with which constitutes a condition precedent) provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such
covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed 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 such Person, such condition or covenant has been complied with.
45
SECTION 15.06.
Legal Holidays
. In any case where the date of maturity of interest on
or principal of or premium, if any, on any series of Debt Securities or the date fixed for redemption or repayment of any Debt Security or Debt Securities will be a legal holiday or a day on which banking institutions are legally authorized or
obligated to close in New York, New York or any other location where a paying agent appointed pursuant to Section 5.02 is located, then payment of such interest on or principal of and premium, if any, on such Debt Securities need not be made by
such paying agent on such date but may be made by such paying agent on the next succeeding day that is not a day in such location that is either a legal holiday nor a day on which banking institutions are legally authorized or obligated to close,
with the same force and effect as if made on such date of maturity or the date fixed for redemption or repayment and no interest shall accrue for the period from and after such prior date.
SECTION 15.07.
Trust Indenture Act of 1939 to Control
. If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317 of the Trust Indenture Act of 1939, by the operation of Section 318(c) thereof, such imposed duties shall control, except as, and to the extent, expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 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.
SECTION 15.08.
Table of Contents, Headings, etc
. The table of
contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.09.
Determination of Principal Amount
. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether sufficient funds are available for redemption or for any other purpose, (a) the
principal amount of an Original Issue Discount Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 7.01, (b) the principal amount of any Debt Securities denominated in a Foreign Currency that shall be deemed to be Outstanding for such purposes shall be determined by converting
the Foreign Currency into Dollars at the Market Exchange Rate as of the date of such determination by the Currency Denomination Agent and (c) the principal amount of any Indexed Debt Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal face amount of such Indexed Debt Security at original issuance, unless otherwise provided in or pursuant to this Indenture.
SECTION 15.10.
Execution in Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall be an
original and such counterparts shall together constitute but one and the same instrument.
SECTION 15.11.
Patriot Act
. In
order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering,
including Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to
comply with Applicable AML Law.
SECTION 15.12.
Consent to Jurisdiction
. Any legal suit, action or proceeding arising out of
or based upon this Indenture, the Debt Securities or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case
located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective service of process for any suit, action
46
or other proceeding brought in any such court. The parties (to the fullest extent permitted by applicable law) irrevocably and unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court has been brought in an inconvenient forum.
47
IN WITNESS WHEREOF, each of the Company and the Trustee has caused this Indenture to be executed
by its officers, as of the day and year first written above.
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UNITED INSURANCE HOLDINGS CORP.
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By:
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/s/ B. Bradford Martz
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Name:
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B. Bradford Martz
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Title:
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Chief Financial Officer
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By:
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Deutsche Bank National Trust Company
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By:
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/s/ Jacqueline Bartnick
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Name: Jacqueline Bartnick
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Title: Director
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By:
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/s/ Kenneth Ring
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Name: Kenneth Ring
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Title: Director
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48
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 13, 2017
between
UNITED
INSURANCE HOLDINGS CORP.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of December 13, 2017 (this “
Supplemental
Indenture
”), between United Insurance Holdings Corp., a Delaware corporation (the “
Company
”), and Deutsche Bank Trust Company Americas, a New York banking corporation, not in its individual capacity but solely as trustee
(the “
Trustee
”), under the Indenture, dated as of December 13, 2017, between the Company and Deutsche Bank Trust Company Americas (the “
Base Indenture
” and, as supplemented by this Supplemental Indenture, the
“
Indenture
”).
W
I
T
N
E
S
S
E
T
H
WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of its
unsecured debentures, notes, bonds or other evidence of indebtedness to be issued in one or more series, as provided in the Base Indenture, up to such principal amount or amounts as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of a new series of its Debt Securities to be known as its 6.250% Senior Notes due 2027 (the “
Notes
”), the form of such Debt Securities and the terms, provisions and conditions thereof to be set forth as provided in
this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture;
WHEREAS, all requirements necessary to make this Supplemental Indenture a legal, valid, binding and enforceable instrument in accordance with
its terms, and to make the Notes, when executed, authenticated and delivered by the Company, the legal, valid, binding and enforceable obligations of the Company, have been done and performed; and
WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized in all respects and this Supplemental Indenture is
authorized or permitted by the Base Indenture.
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders
thereof, and for the purpose of setting forth, as provided in the Base Indenture, the form and terms of the Notes, the Company covenants and agrees with the Trustee as follows, solely for purposes of the Notes and not for purposes of any other
Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
. Capitalized terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given
to such terms in the Base Indenture.
“
Additional Notes
” means additional Notes (other than the Initial Notes) issued
from time to time under the Indenture.
“
Adjusted Consolidated Debt
” means, at any date of determination, Consolidated
Indebtedness (of the Company and its Subsidiaries described in any or all of clauses (1), (2), (3), (4), (7) and (8) of the definition of “Indebtedness” (but, as to clause (8), only to the extent that it is an unpaid obligation in
respect of a letter of credit or letter of guaranty that is then due and payable and not contingent) of the Company and its Subsidiaries, other than Subordinated Debt.
“
Adjusted Total Capitalization
” means, as of any date, an amount equal to Total Capitalization, plus accumulated other
comprehensive loss, or minus accumulated other comprehensive income (as those terms are used under GAAP), as applicable, to the extent, if any, reflected as a component of Consolidated Net Worth as of such date.
“
Affiliate
” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under
common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
” have meanings correlative to the foregoing.
“
A.M. Best
” means A.M. Best Company, Inc. and any successor to its rating agency business.
“
Applicable Procedures
” means, with respect to any transfer or transaction involving a Global Note or beneficial interest
therein, the rules and procedures of the Depositary for such Global Note.
“
Applicable Rating Agency
” means one of the
following Rating Agencies at any given time: (i) in the case that there is only one Rating Agency rating the Notes, such Rating Agency, (ii) in the case that there are two Rating Agencies rating the Notes, such Rating Agency providing the
lower rating, or (iii) in the case that there are three or more Rating Agencies rating the Notes, such Rating Agency providing the second lowest rating.
“
Balance Sheet Date
” means the last day of any annual or quarterly period for which the Company’s Consolidated balance
sheet is delivered to the Trustee as required under the Indenture.
“
Base Indenture
” shall have the meaning set forth in
the recitals hereto.
“
Board of Directors
” means:
1
(1) with respect to a corporation, the Board of Directors of the corporation
or any committee thereof duly authorized to act on behalf of the Board of Directors with respect to the relevant matter;
(2) with respect to a partnership, the Board of Directors of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such Person serving a similar function.
“
Capital Lease Obligations
” of any Person means such obligations of the 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 the Person under GAAP (excluding all
obligations under operating leases required by the Financial Accounting Standards Board to be classified or accounted for as capital leases). The amount of such obligations will be the capitalized amount thereof, determined in accordance with GAAP.
“
Capital Stock
” of any Person means (1) with respect to any Person that is a corporation, any and all shares,
interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Common Stock or Preferred Stock, and (2) with respect to any Person that is not a
corporation, any and all partnership, limited liability company, membership or other equity interests of such Person, but in each case excluding any debt securities convertible into any of the foregoing.
“
Change of Control
” means the occurrence of any one of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3)
of the Exchange Act)) other than to the Company or one of its Subsidiaries or to one or more Permitted Holders;
(2) the
consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)), other than
one or more Permitted Holders, becomes the beneficial owner (as that term is used in Rule
13d-3
and Rule
13d-5
under the Exchange Act), directly or indirectly, of more
than 50% of the outstanding Voting Stock of the Company, measured by voting power rather than number of shares;
(3) the
Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such
other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Company outstanding immediately prior to such transaction constitute, or are converted
into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such transaction; or
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control under clause (2) or (3) above if (i) the Company
becomes a direct or indirect wholly owned Subsidiary of a holding company and (ii)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same (in the Company’s
good faith judgment) as the holders of the Voting Stock of the Company immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is
the beneficial owner (as that term is used in Rule
13d-3
and Rule
13d-5
under the Exchange Act), directly or indirectly, of more than a majority of the Voting Stock of
such holding company.
“
Change of Control Triggering Event
” means, the occurrence of both a Change of Control and a
Rating Event.
“
Common Stock
” means with respect to any Person, any and all shares, interests or other participations in,
and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the Independent Investment Banker as having
a maturity comparable to the remaining term of the Notes to be redeemed (assuming 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 comparable maturity to the remaining term of the Notes (assuming that the Notes matured on the Par Call Date).
“
Comparable Treasury Price
” means, with respect to any redemption date, (i) the average of three Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the
average of all such quotations or (iii) if the Independent Investment Banker only obtains one such Reference Treasury Dealer Quotation, such quotation.
2
“
Consolidated
” means the Company and its Subsidiaries, taken as a whole in
accordance with GAAP.
“
Consolidated Assets
” means, as of the date of determination, the net book value of all assets of
the Company and its Subsidiaries as of such date classified as assets in accordance with GAAP and determined on a Consolidated basis.
“
Consolidated Liabilities
” means, as of the date of determination, all liabilities of the Company and its Subsidiaries as of
such date classified as liabilities in accordance with GAAP and determined on a Consolidated basis.
“
Consolidated Net
Worth
” means, as of the date of determination, the remainder of (i) all Consolidated Assets (after deducting all applicable reserves and excluding any
re-appraisal
or
write-up
of assets after the Issue Date) as of such date, minus (ii) all Consolidated Liabilities as of such date.
“
Equity Interests
” means, with respect to any Person (1) any and all shares or other equity interests (including common
stock, preferred stock, limited liability company interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or
interests in (however designated) such shares or other interests in such Person.
“
Exchange Act
” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“
Fair Value
”
means, when used with respect to dispositions of Capital Stock or other assets, the fair value thereof as determined in good faith by the Board of Directors.
“
Fitch
” means Fitch Ratings, Inc. and any successor to its rating agency business.
“
GAAP
” means generally accepted accounting principles in the United States of America as in effect from time to time,
including 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 approved by a significant segment of the accounting profession. All ratios and computations based on GAAP contained in this Supplemental Indenture will be computed in conformity with GAAP as in effect from time to
time, except that in the event the Company is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase accounting shall be disregarded in the calculation of such ratios and computations
contained in this Supplemental Indenture.
“
Guarantee
” means any obligation, contingent or otherwise, of any Person,
directly or indirectly, guaranteeing any indebtedness for borrowed money of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay,
or to maintain
financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such indebtedness or other financial obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however
, that the term “
Guarantee
” will not include endorsements for collection or deposit in the ordinary
course of business; provided further that the amount of each Guarantee will be the lesser of (i) the amount of the primary obligation or, if not stated, or indeterminable, the reasonably expected liability in respect of such primary obligation
and (ii) the stated maximum amount of such Guarantee. The term “
Guarantee
” used as a verb has a corresponding meaning.
“
Incur
” means to issue, create, assume, Guarantee, incur or otherwise become liable for;
provided
,
however
,
that any Indebtedness of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Person at the time it becomes a Subsidiary; and the terms
“
Incurred
” and “
Incurrence
” have meanings correlative to the foregoing. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness)
shall be deemed incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“
Indebtedness
” of any Person means, without duplication:
(1) all obligations of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments;
(3) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by
such Person;
3
(4) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable, deferred compensation, pension obligations, customer advances and accrued expenses incurred in the ordinary course of business);
(5) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien (other than carriers’, mechanics, repairmen’s or like nonconsensual liens, arising in the ordinary course of business) on property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed;
provided
that, if such Indebtedness is not assumed, the amount shall be the lesser of (i) the fair market value of the property subject to such Lien and (ii) the amount of the Indebtedness secured
by such Lien;
(6) all Guarantees by such Person of Indebtedness of others;
(7) all Capital Lease Obligations of such Person;
(8) all unpaid obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty (other than cash collateralized letters of credit to secure the performance of workers’ compensation, unemployment insurance, other social security laws or regulations, bids, trade contracts, leases, environmental and other
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case, obtained in the ordinary course of business); and
(9) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.
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 that such Person is liable therefor pursuant to law or judicial holding as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that contractual provisions binding
on the holder of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, Indebtedness shall not include (i) Indebtedness between the Company and any Subsidiary or between two or more Subsidiaries,
(ii) obligations with respect to insurance policies, annuities, guaranteed investment contracts and similar products underwritten by, or reinsurance agreements or retrocession agreements entered into by, an Insurance Subsidiary in the ordinary
course of its business (including with respect to any reinsurance agreements to support any insurance-linked securities), (iii) obligations in the ordinary course of business of such Person to purchase securities that arise out of or in connection
with the sale of the same or substantially similar securities or to return collateral consisting of securities arising out of or in connection with the loan of the same or substantially similar securities, (iv) unspent cash deposits or
securities held in escrow by or in favor of such Person, or in a segregated deposit or securities account, as applicable, controlled by such Person, in each case in the ordinary course of business to secure the performance obligations of, or damages
owing from, one or more third parties, (v) any Indebtedness under any overdraft or other cash management facilities so long as any such Indebtedness is repaid in full no later than five Business Days following the date on which it was incurred
or in the case of such Indebtedness in respect of credit or purchase cards, within 60 days of its incurrence, (vi) except as provided in clause (7) above, any obligations in respect of a lease properly classified as an operating lease in
accordance with GAAP, (vii) any liability for federal, state, local or other taxes not yet delinquent or being contested in good faith and for which adequate reserves have been established to the extent required by GAAP, (viii) any
customer deposits or advance payments received in the ordinary course of business and (ix) Surplus Notes.
“
Independent
Investment Banker
” means the Reference Treasury Dealer selected by the Company.
“
Initial Notes
” means the Notes
issued on the Issue Date.
“
Insurance Regulatory Authority
” means, with respect to any Insurance Subsidiary, the
governmental or regulatory authority or agency charged with regulating the insurance business of insurance companies or insurance holding companies, in its jurisdiction of legal domicile.
“
Insurance Subsidiary
” means any Subsidiary of the Company that is required to be licensed as an insurer or reinsurer.
“
Investment Grade
” means a rating equal to or higher than
bbb-
by A.M. Best (or its
equivalent under any successor rating category of A.M. Best),
BBB-
by KBRA (or its equivalent under any successor rating category of KBRA),
BBB-
by Fitch (or its
equivalent under any successor rating category of Fitch), Baa3 by Moody’s (or its equivalent under any successor rating category of Moody’s),
BBB-
by S&P (or its equivalent under any successor
rating category of S&P), or its equivalent by any other Rating Agency.
“
Issue Date
” means December 13, 2017.
“
KBRA
” means Kroll Bond Rating Agency, Inc. and any successor to its rating agency business.
“
Leverage Ratio
” means, as of any determination date, the ratio of (a) Adjusted Consolidated Debt to (b) Adjusted
Total Capitalization.
4
“
Lien
” means, with respect to any asset, any mortgage, lien (statutory or
otherwise), pledge, hypothecation, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction;
provided
that in no event shall an operating lease (or any filing or agreement to give any financing statement in connection therewith) be deemed to constitute a Lien.
“
Moody’s
” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“
Notes
” means the Initial Notes and, more particularly, means any Note authenticated and delivered under the Indenture. For
all purposes of the Indenture, the term “
Notes
” shall also include any Additional Notes that may be issued under a supplemental indenture and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes.
“
Paying Agent
” means initially, the Trustee and, thereafter, a replacement agent chosen by the Company in accordance with the
Indenture.
“
Permitted Holders
” means (i) R. Daniel Peed, any current or former spouse of his and any of their
direct or indirect descendants and immediate family, including by marriage, (ii) any corporation, limited liability company or partnership controlled by any person referred to in clause (i) and of which such person is the beneficial owner
of a majority of the Equity Interests and (iii) any trust for the benefit of any person referred to in clause (i).
“
Preferred Stock
” means, as applied to the Capital Stock of any corporation, Capital Stock of any class or classes (however
designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“
Rating Agency
” means each of A.M. Best, Fitch, KBRA, Moody’s and S&P, and any other nationally recognized
statistical rating organization (within the meaning of Section 15E of the Exchange Act) rating the Notes at any time; provided, that if any such Rating Agency ceases to provide rating services to issuers or investors, the Company may appoint a
replacement for such Rating Agency.
“
Rating Event
” means (i) the rating of the Notes is downgraded by at least one
gradation (including gradations within rating categories as well as between rating categories, but not including ratings outlook changes) by at least two Rating Agencies (or, if only one Rating Agency is rating the Notes at any time, such Rating
Agency), and (ii) as a result of such downgrade, such Notes cease to be rated Investment Grade by such downgrading Rating Agencies (or Rating Agency), on any date during the period commencing on the date that is 60 days prior to the date of the
first public announcement by the Company of the occurrence of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control. Notwithstanding the foregoing, a Change of Control Triggering
Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Change of Control Triggering Event for purposes of the definition
of Change of Control Triggering Event) if the downgrading Rating Agencies (or Rating Agency) do not announce or publicly confirm or inform the Trustee in writing at the Company’s or the Trustee’s request that the reduction was the result,
in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Change of Control
Triggering Event). In addition, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated. In no event shall the
Trustee be charged with monitoring ratings nor shall it be charged with knowledge of a Rating Event.
“
Reference Treasury
Dealer
” means each of Raymond James & Associates, Inc., Wells Fargo Securities, LLC and three other primary U.S. government securities dealers (each a “Primary Treasury Dealer”), as specified by the Company;
provided,
however
, that if any of Raymond James & Associates, Inc., Wells Fargo Securities, LLC or any Primary Treasury Dealer as specified by the Company shall cease to be a Primary Treasury Dealer, the Company will 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 Independent Investment Banker, 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
Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such redemption date.
“
S&P
” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“
SAP
” shall mean, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted
by the Insurance Regulatory Authority of its jurisdiction of legal domicile, consistently applied as in effect from time to time.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated
thereunder.
5
“
Significant Subsidiary
” means any Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule
1-02
under Regulation
S-X
promulgated by the Commission.
“
Subordinated Debt
” means Indebtedness of the Company (a) no part of the principal of which is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to the date that is twelve months after the stated maturity date of the Notes and (b) that has been subordinated to the Notes in right and
time of payment.
“
Subsidiary
” of any Person means (1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof), or (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof). Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of
the Company.
“
Surplus Note
” means a promissory note executed by an Insurance Subsidiary of the type generally described
in the insurance industry as a “
surplus note
,” the principal amount of which an insurance regulator permits the issuer to record as an addition to capital and surplus rather than as a liability in accordance with SAP.
“
Supplemental Indenture
” shall have the meaning set forth in the recitals hereto.
“
Total Capitalization
” means, at any date of determination, the sum of (i) Consolidated Indebtedness of the Company, of
the type described in any or all of clauses (1), (2), (3), (4), (7) and (8) of the definition of “Indebtedness” (but with respect to clause (8), only to the extent that it is an unpaid obligation in respect of a letter of credit or
letter of guaranty that is then due and payable and not contingent on such date), and (ii) Consolidated Net Worth of the Company.
“
Treasury Rate
” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be
calculated on the third Business Day preceding the redemption date.
“
Uniform Commercial Code
” means the New York Uniform
Commercial Code as in effect from time to time.
“
Voting Stock
” of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
Section 1.02.
Other Definitions
.
|
|
|
|
|
Term
|
|
Defined in Section
|
|
“
Change of Control Offer
”
|
|
4.06(b)
|
|
“
Change of Control Payment
”
|
|
4.06(b)(1)
|
|
“
Change of Control Payment Date
”
|
|
4.06(b)(2)
|
|
“
Downgrade Event
”
|
|
2.03
|
|
“
Global Note
”
|
|
2.02(b)
|
|
“
Par Call Date
”
|
|
3.01(a)
|
|
“
Upgrade Event
”
|
|
2.03
|
Section 1.03.
Rules of Construction
.
Unless the context otherwise requires, a term defined in Section 1.01 or 1.02 has the meaning assigned to it therein, a term used in this
Supplemental Indenture but not defined shall have the meaning assigned to it in the Base Indenture, and a term used herein that is defined in the Trust Indenture Act of 1939, either directly or by reference therein, shall have the meaning assigned
to it therein. All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles. All references to such terms herein shall be both to the singular or the plural, as the
context so requires. Unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this Supplemental Indenture. The words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The words “including,” “includes” and
“include” shall be deemed to be followed by the words “without limitation.” In the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Company may
classify such transaction as it, in its sole discretion, determines.
6
Section 1.04.
Incorporation by Reference of Trust Indenture Act
.
Whenever this Supplemental Indenture refers to a provision of the Trust Indenture Act of 1939 as applicable to this Supplemental Indenture, the
provision is incorporated by reference in and made a part of this Supplemental Indenture.
Section 1.05.
Status of Base Indenture
.
The amendments and other modifications of the Base Indenture set forth in this Supplemental Indenture shall apply solely for purposes of the
Notes and not for purposes of any other Debt Securities. Any provision of the Base Indenture amended or otherwise modified by this Supplemental Indenture shall apply to the Notes as so amended or modified, and any provision of the Base Indenture not
amended or modified by this Supplemental Indenture shall apply to the Notes, unless otherwise specifically stated in this Supplemental Indenture.
ARTICLE 2
THE NOTES
Section 2.01.
Designation, Principal Amount and Issuance
.
There is hereby authorized a series of Debt Securities designated as the 6.250% Senior Notes due 2027, in an aggregate initial principal amount
of $150,000,000,
provided, however
, that the aggregate principal amount of the Notes may be increased in the future, without giving notice to or seeking the consent of the Holders of the Notes on the same terms as the Notes (except for the
issue date, issue price, and in some cases, the first Interest Payment Date, and the date from which interest will accrue) and constituting a single series of Debt Securities under the Indenture;
provided further
, however, that if the
Additional Notes are not fungible with the previously issued Notes for U.S. federal income tax purposes, such Additional Notes shall have separate CUSIP, ISIN or other identifying numbers.
The Notes, upon execution of this Supplemental Indenture, shall be executed by the Company and delivered to the Trustee for authentication,
and, pursuant to a Company Order, the Trustee shall thereupon authenticate and deliver said Notes in accordance with such Company Order. The Notes shall be senior obligations of the Company and will rank equally with all other existing and future
senior unsecured indebtedness of the Company.
Section 2.02.
Form, Payment and Appointment
.
(a) The Notes shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this
Supplemental Indenture. The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Company is subject, if any, or usage (
provided
that any such notation, legend
or endorsement is in a form acceptable to the Company).
(b) The Notes shall be designated the 6.250% Senior Notes due 2027.
(c) The Notes shall be Global Debt Securities and shall initially be issued in fully registered, permanent global form without coupons (a
“
Global Note
”), and the Depositary for the Notes shall be The Depository Trust Company or such other depositary as any officer of the Company may from time to time designate.
(d) The Place of Payment of the Notes shall initially be the Corporate Trust Office of the Trustee.
(e) The Security Registrar and Paying Agent for the Notes shall initially be the Trustee.
(f) The Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(g) The Notes shall mature on December 15, 2027, subject to the provisions of the Indenture.
(h) The Notes shall bear interest at the rate of 6.250% per annum, subject to the provisions of the Indenture.
(i) The Interest Payment Dates of the Notes shall be June 15 and December 15 of each year, commencing on June 15, 2018.
(j) The Regular Record Dates of the Notes shall be the June 1 or December 1 (whether or not a Business Day) immediately preceding
such Interest Payment Date.
Section 2.03.
Interest Rate Adjustment
.
The interest rate payable on the Notes shall be subject to adjustment from time to time if the Applicable Rating Agency downgrades (or
subsequently upgrades) the rating assigned to the Notes in the manner described in this Section 2.03.
The interest rate on the Notes
will increase such that it will equal the interest rate payable on the Notes on the Issue Date plus 1.000%, or 100 basis points, per annum if, at any time, (a) the Applicable Rating Agency downgrades the credit rating assigned to the Notes to
below Investment Grade or (b) in the case where there is only one Rating Agency rating the Notes, such Rating Agency ceases to rate the Notes or fails to make a rating of the Notes publicly available (each such event, a “
Downgrade
Event
”).
7
If the Applicable Rating Agency subsequently increases its rating to Investment Grade or an
Applicable Rating Agency subsequently issues an initial rating of the Notes at Investment Grade (each such event, an “
Upgrade Event
”), the annual interest rate payable on the Notes immediately preceding such Upgrade Event will
decrease to the interest rate payable on the Notes on the Issue Date.
Each adjustment required by any Downgrade Event or Upgrade Event
will take effect from the first Interest Payment Date following the date on which the Downgrade Event or Upgrade Event occurs. As such, interest will not accrue at such increased or decreased rate until the next Interest Payment Date following the
date on which the Upgrade Event or Downgrade Event occurs. If an Applicable Rating Agency changes its rating of the Notes more than once prior to any particular Interest Payment Date, or ceases to provide a rating of the Notes, the last change by
such agency prior to such Interest Payment Date will control for purposes of any interest rate increase or decrease with respect to the Notes described in this Section 2.03 relating to such Applicable Rating Agency’s action.
If the interest rate payable on the Notes is increased or decreased as described above, the term “interest,” as used with respect to
the Notes, will be deemed to include any such additional or lesser interest unless the context otherwise requires. For the avoidance of doubt, no interest rate increase or decrease described in this Section 2.03 will have any effect on interest
that will have accrued on the Notes prior to such date or have any other retroactive effect. The Company shall promptly notify the Trustee in writing of any adjustments made to the interest rate payable on the Notes pursuant to this Supplemental
Indenture.
ARTICLE 3
REDEMPTION
Section 3.01.
Optional
Redemption
.
(a) Prior to September 15, 2027 (the “
Par Call Date
”), the Company may redeem the Notes, at its
option, at any time in whole or from time to time in part at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of interest accrued as of the date of redemption) from the date of redemption to the Par Call Date, discounted to the date of redemption on a semi-annual basis (assuming a
360-day
year consisting of twelve
30-day
months) at the Treasury Rate, plus 50 basis points; plus, in each case, accrued and unpaid interest on the principal amount of any
Notes to be redeemed to, but excluding, the redemption date of the Notes to be redeemed.
(b) On or after the Par Call Date, the
Company may redeem the Notes, at the Company’s option, at any time in whole or from time to time in part, 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 any Notes to be redeemed to, but excluding, the redemption date.
(c) If a redemption date occurs during the period
beginning on an Regular Record Date and ending on the related Interest Payment Date, the accrued and unpaid interest, if any, shall be paid to the Person in whose name the Note is registered at the close of business on such Regular Record Date, and
no additional interest shall be payable to Holders whose Notes will be subject to redemption by the Company.
Section 3.02.
Mandatory
Redemption
.
The Company will not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
Section 4.05 of the Base Indenture shall not apply to the Notes.
ARTICLE 4
COVENANTS
Section 4.01.
Offer to
Repurchase Upon Change of Control Triggering Event
.
(a) If a Change of Control Triggering Event occurs, unless the Company has
exercised its right to redeem all of the Notes pursuant to Section 3.01, each Holder shall have the right to require the Company to repurchase all or any part (in integral multiples of $1,000 except that no Note may be tendered in part if the
remaining principal amount would be less than $2,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the repurchase date
(subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
(b)
Within 30 days following any Change of Control Triggering Event, except to the extent the Company has exercised its right to redeem all of the Notes pursuant to Section 3.01, or, at the Company’s option, prior to any Change of Control but
after the public announcement of a transaction or transactions that constitute or may constitute a Change of Control, the Company shall send, by first class mail, or otherwise deliver in accordance with the Applicable Procedures, a notice (the
“
Change of Control Offer
”) to each Holder or otherwise give notice in accordance with the Applicable Procedures, with a copy to the Trustee, stating:
8
(1) that a Change of Control Offer is being made and that all Notes validly tendered and not
withdrawn pursuant to such Change of Control Offer will be accepted for repurchase by the Company at a repurchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date
of repurchase (subject to the right of Holders of record on a Regular Record Date to receive interest on the relevant Interest Payment Date) (the “
Change of Control Payment
”);
(2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise
delivered in accordance with the Applicable Procedures, other than as may be required by law) (the “
Change of Control Payment Date
”);
(3) the procedures determined by the Company, not inconsistent with the Indenture, that a Holder must follow in order to have its Notes
repurchased;
(4) that any Notes not tendered will continue to accrue interest in accordance with the terms of the Indenture;
(5) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the
Notes delivered for repurchase and a statement that such Holder is unconditionally withdrawing its election to have such Notes repurchased;
(7) if such notice is delivered prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is
conditioned on the occurrence of such Change of Control Triggering Event; and
(8) that Holders whose Notes are being repurchased only in
part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (in principal amounts of $2,000 or larger integral multiples of $1,000 in excess
thereof) validly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all Notes or portions of Notes validly tendered and not withdrawn; and
(3) deliver or cause
to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company.
(d) The Paying Agent shall promptly submit electronically or mail to each Holder of Notes so tendered the Change of Control Payment for such
Notes, and the Trustee, upon receipt of a Company Order in the case of certificated Notes, shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note (it being understood that, notwithstanding anything
in the Indenture to the contrary, no Opinion of Counsel or Officers’ Certificate will be required for the Trustee to authenticate or deliver such new Note) equal in principal amount to any unpurchased portion of the Notes surrendered, if any;
provided
that each such new Note will be in a minimum principal amount of $2,000 or integral multiples of $1,000 in excess thereof.
(e) The Company shall not be required to make a Change of Control Offer following a Change of Control Triggering Event if (1) a third
party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer or (2) a notice of redemption for all of the outstanding Notes has been given pursuant to the Indenture unless and until there is a default in payment of the applicable redemption price, plus
accrued and unpaid interest to, but excluding, the proposed redemption date. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditioned upon such Change of
Control Triggering Event.
(f) The Company shall comply, to the extent applicable, with the requirements of Rule
14e-1
under the Exchange Act and any other securities laws or regulations thereunder in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with provisions of the Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue of
such compliance.
(g) Other than as specifically provided in this Section 4.01, any purchase pursuant to this Section 4.01 shall
be made pursuant to the provisions of Article Four of the Base Indenture, as amended by this Supplemental Indenture.
9
Section 4.02.
Limitation on Incurrence of Indebtedness
.
(a) The Company shall not, and shall not permit any of its Subsidiaries to, Incur, any Indebtedness unless:
(1) no Event of Default has occurred and is continuing; and
(2) the Company’s Leverage Ratio as of the Balance Sheet Date immediately preceding the date on which such additional Indebtedness is
Incurred would have been no greater than 0.30 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness and all other Indebtedness Incurred since the immediately
preceding Balance Sheet Date had been Incurred and the proceeds therefrom applied as of such day.
Section 4.03.
Limitation on Liens
.
(a) The Company shall not, and shall not permit any of its Subsidiaries to, create, assume, Incur or permit to exist any Indebtedness for
borrowed money (including any Guarantee of Indebtedness for borrowed money) that is secured by a Lien on:
(1) the Voting Stock of any
Significant Subsidiary; or
(2) the Voting Stock of a Subsidiary that owns, directly or indirectly, the Voting Stock of any of the
Significant Subsidiaries, in either case, without providing that the issued and outstanding Notes will be secured equally and ratably with Indebtedness so secured so long as such other Indebtedness shall be secured. This Section 4.03 does not
apply to liens on Voting Stock existing at the time a Person becomes a Significant Subsidiary or any renewal or extension of such existing liens and does not apply to securities of Subsidiaries that are not “Significant Subsidiaries.”
(b) If the Company shall hereafter be required to secure the Notes equally and ratably with any other Indebtedness pursuant to this
Section 4.03, the Trustee is hereby authorized and directed to enter into an indenture or agreement supplemental hereto in order to provide for such security.
Section 4.04.
Restrictions on Dispositions
.
(a) The Company shall not, and shall not permit any of its Subsidiaries to, issue, sell, assign, transfer or otherwise dispose of, directly or
indirectly, any of the Capital Stock of the Company’s Significant Subsidiaries as of the Issue Date (except to the Company or to one or more of the Company’s other Subsidiaries, or for the purpose of qualifying directors or as may be
required by law or regulation), unless:
(1) the issuance, sale, assignment, transfer or other disposition is required to comply with the
order of a court or regulatory authority of competent jurisdiction, other than an order issued at the Company’s request or the request of one of the Company’s Subsidiaries;
(2) the entire Capital Stock of a Significant Subsidiary then owned by the Company or one or more of the Company’s Subsidiaries is
disposed of in a single transaction or in a series of related transactions, for consideration consisting of cash or other property which is at least equal to the Fair Value of such Capital Stock; or
(3) after giving effect to the issuance, sale, assignment, transfer or other disposition, the Company and its Subsidiaries would own directly
or indirectly at least 80% of the issued and outstanding Capital Stock of such Significant Subsidiary and such issuance, sale, assignment, transfer or other disposition is made for consideration consisting of cash or other property which is at least
equal to the Fair Value of such Capital Stock.
Section 4.05.
Reports and Other Information
.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall furnish to the Trustee and the Holders, within 15 days after the applicable time periods specified in the relevant forms (or, if the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act,
within 15 days after the applicable time periods specified in the relevant forms for
non-accelerated
filers), after giving effect to any grace period provided by Rule
12b-25
under the Exchange Act: (1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms
10-Q
and
10-K
if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and (2) all current reports that would be required to be filed
with the Commission on Form
8-K
if the Company were required to file such reports;
provided
,
however
, that to the extent such reports are filed with the Commission and publicly available, such
reports shall have been deemed to have been provided to the Trustee and the Holders and no additional copies need to be provided to the Trustee and the Holders. The Trustee shall have no responsibility whatsoever to determine whether any such filing
has occurred.
(b) Unless such reports are otherwise filed with the Commission, the Company shall maintain a website to which all of the
reports required by this Section 4.05 are posted to which access will be given to the Trustee, the Holders and prospective purchasers of the Notes that certify their status as such to the reasonable satisfaction of the Company and agree to keep
such reports confidential.
(c) In addition, if at any time any direct or indirect parent company of the Company guarantees the Notes
(there being no obligation of any such parent to do so), and such entity holds no material assets other than cash, cash equivalents and the Capital Stock of the Company or any other direct or indirect parent of the Company (and
10
performs the related incidental activities associated with such ownership) and would comply with the requirements of Rule
3-10
of Regulation
S-X
promulgated by the Commission (or any successor provision), the reports, information and other documents required to be furnished to Holders pursuant to this Section 4.05 may, at the option of the Company,
be furnished by and be those of such parent rather than the Company.
(d) Any and all defaults or Events of Default arising from a failure
to furnish or file in a timely manner a report required by this Section 4.05 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 4.05) upon furnishing or filing such report as contemplated by this
Section 4.05 (but without regard to the date on which such report is so furnished or filed);
provided
that such cure shall not otherwise affect the rights of the Holders pursuant to Article Seven of the Base Indenture if the principal,
premium, if any, and accrued interest have been accelerated in accordance with the terms of the Indenture and such acceleration has not been rescinded or cancelled prior to such cure.
ARTICLE 5
LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
Section 5.01.
Legal Defeasance
.
The Notes shall be subject to legal defeasance in accordance with, and Article 4 of this Supplemental Indenture shall be subject to the
provisions of, Section 13.01 of the Base Indenture.
Section 5.02.
Covenant Defeasance
.
The Notes shall be subject to covenant defeasance in accordance with, and Article 4 of this Supplemental Indenture shall be subject to the
provisions of, Section 13.02 of the Base Indenture.
ARTICLE 6
MISCELLANEOUS
Section 6.01.
Provisions
Binding on Successors of the Company
.
All of the covenants, stipulations, promises and agreements in this Supplemental Indenture made
by the Company shall bind its successors and assigns whether so expressed or not.
Section 6.02.
Governing Law; Waiver of Trial by Jury
.
This Supplemental Indenture and the Notes shall for all purposes be construed in accordance with and governed by the laws of the State of New
York. EACH OF THE COMPANY, THE TRUSTEE, AND THE HOLDERS 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 SUPPLEMENTAL
INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.03.
Trust Indenture Act of 1939 to Control
.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317 of the Trust Indenture
Act of 1939, by the operation of Section 318(c) thereof, such imposed duties shall control, except as, and to the extent, expressly excluded from this Supplemental Indenture, as permitted by the Trust Indenture Act of 1939. If any provision of
this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as
the case may be.
Section 6.04.
Table of Contents, Headings, etc
.
The table of contents and the titles and headings of the articles and sections of this Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 6.05.
Execution in Counterparts
.
This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original and such counterparts shall
together constitute but one and the same instrument.
Section 6.06.
Consent to Jurisdiction
.
Any legal suit, action or proceeding arising out of or based upon this Supplemental Indenture, the Notes or the transactions contemplated
hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the “
Specified
Courts
”), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall
be effective service of process for any suit, action or other proceeding brought in any such
11
court. The parties (to the fullest extent permitted by applicable law) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court has been brought in an inconvenient forum.
Section 6.07.
The Trustee
.
The
Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company. In
entering into the Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein
so provided.
[
Signatures on following page
]
12
IN WITNESS WHEREOF, each of the Company and the Trustee has caused this First Supplemental
Indenture to be executed by its officers, as of the day and year first written above.
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UNITED INSURANCE HOLDINGS CORP.
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By:
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/s/ B. Bradford Martz
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Name: B. Bradford Martz
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Title: Chief Financial Officer
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[
Signature page to Supplemental Indenture for 6.250% Senior Notes due 2027
]
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By: Deutsche Bank National Trust Company
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By:
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/s/ Jacqueline Bartnick
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Name: Jacqueline Bartnick
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Title: Director
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By:
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/s/ Kenneth Ring
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Name: Kenneth Ring
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Title: Director
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[
Signature page to Supplemental Indenture for 6.250% Senior Notes due 2027
]
EXHIBIT A
[FORM OF FACE OF NOTE]
[UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITORY OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO THE NOMINEE OF THE DEPOSITORY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITORY, HAS AN INTEREST HEREIN] (1)
CUSIP 910710 AA0
ISIN US910710AA09
UNITED INSURANCE HOLDINGS CORP.
GLOBAL NOTE
6.250% Senior Notes
due 2027
No.
R-[
] [Up to]
[$
]
UNITED
INSURANCE HOLDINGS CORP. promises to pay to [CEDE & CO.](1) [ ] or its registered assigns the principal sum of
$[ ]
([ ] Dollars) [or such other principal sum as shall be set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto](1) on December 15, 2027.
Interest Payment Dates: June 15 and
December 15, commencing June 15, 2018.
Regular Record Dates: June 1 and December 1.
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(1)
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Include in Global Debt Security
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
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UNITED INSURANCE HOLDINGS CORP.
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein issued under the within-mentioned Indenture:
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By:
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Authorized Signatory
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Dated:
A-1
[Reverse Side of Note]
6.250% Senior Notes due 2027
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. United Insurance Holdings Corp., a Delaware corporation (the “
Company
”), promises to pay interest on the
principal amount of this Note at 6.250% per annum (subject to adjustment as provided in the Supplemental Indenture referred to below) from and including December 13, 2017 . The Company shall pay interest semi-annually in arrears on June 15
and December 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “
Interest Payment Date
”). Interest on the Notes shall accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from and including the date of original issuance;
provided
that the first Interest Payment Date shall be June 15, 2018. The Company shall pay interest on overdue principal and premium, if any,
from time to time on demand at the interest rate on the Notes; it shall pay interest (on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest shall
be computed on the basis of a
360-day
year comprised of twelve
30-day
months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of
business on June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Regular Record Date and on or before such Interest
Payment Date, except as provided in Section 3.08 of the Base Indenture (defined below) with respect to defaulted interest. Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained
for such purpose;
provided
that, at the option of the Company, interest on the Notes may be paid by wire transfer or by mailing checks for such interest to or upon the written order of the holders thereof at their last address as they shall
appear on the Security Registrar;
provided further
that payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and interest on all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Company or the Paying Agent at least five Business Days prior to the applicable payment date. Such payment shall be 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.
3. PAYING AGENT AND SECURITY REGISTRAR. Initially, Deutsche Bank
Trust Company Americas, the Trustee (the “Trustee”) under the Indenture, shall act as Paying Agent and Security Registrar. The Company may change any Paying Agent or Security Registrar without notice to the Holders. The Company or any of
its Subsidiaries may act as Paying Agent or Security Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture, dated
as of December 13, 2017 (the “
Base Indenture
”), between the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of December 13, 2017 (the “
Supplemental Indenture
” and,
together with the Base Indenture, the “
Indenture
”), between the Company and the Trustee. This Note is one of a duly authorized issue of Debt Securities of the Company designated as its 6.250% Senior Notes due 2027. The Company shall
be entitled to issue Additional Notes under the Indenture. The Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act of 1939 for a statement of such terms. Any
term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
5. REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption, and may be the subject of a
Change of Control Offer, as further described in the Indenture. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
6. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.
7. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as its owner for all purposes.
8. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture or the Notes may be amended or
supplemented as provided in the Indenture.
9. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in
Section 7.01 of the Base Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company, the Trustee and the Holders shall be as set forth in the applicable provisions of the Indenture.
A-2
10. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
11. GOVERNING LAW. THIS NOTE WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. CUSIP AND ISIN NUMBERS. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Notes, and the CUSIP and ISIN numbers may be used in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
A-3
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to:
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(Insert assignee’s legal name)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-4
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.01 of the Supplemental Indenture, check the
following box: [ ]
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.01 of the
Supplemental Indenture, state the amount you elect to have purchased:
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$
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(integral multiples of
$1,000,
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provided
that the
unpurchased portion
must be in a minimum
principal amount of
$2,000)
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Date:
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Your Signature:
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(Sign exactly as your
name appears on the
face of this Note)
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Tax Identification
No.:
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Signature
Guarantee*:
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-5
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is
$[ ]. The following exchanges of a part of this Global Note for an interest in
another Global Note or for a definitive Note, or exchanges of a part of another Global or definitive Note for an interest in this Global Note, have been made:
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Date of
Exchange
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Amount of
decrease
in
Principal
Amount
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Amount of
increase
in
Principal
Amount of this
Global Note
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Principal Amount
of
this Global Note
following such
decrease
or
increase
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Signature of
authorized
signatory
of
Trustee or
Custodian
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*
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This schedule should be included only if the Note is issued in global form
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A-6
